Datasets:

suolyer

/

pile_freelaw

like 0

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Parwan Group Company ) ASBCA No. 60657 ) Under Contract No. SP0600-13-D-9504 ) APPEARANCES FOR THE APPELLANT: Eric S. Montalvo, Esq. Lauren R. Brier, Esq. The Federal Practice Group Worldwide Service Washington, DC APPEARANCES FOR THE GOVERNMENT: Daniel K. Poling, Esq. DLA Chief Trial Attorney Matthew Vasquez, Esq. Trial Attorney DLA Energy Fort Belvoir, VA OPINION BY ADMINISTRATIVE JUDGE D'ALESSANDRIS ON THE GOVERNMENT'S MOTION FOR PARTIAL DISMISSAL FOR LACK OF JURISDICTION AND MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Appellant Parwan Group Company (Parwan) appeals from a contracting officer's final decision denying its claim for unanticipated security costs arising out of a fuel delivery contract in Afghanistan. The Defense Logistics Agency-Energy (DLA) moves for partial dismissal for lack of jurisdiction, alleging that portions of Parwan's complaint raise claims that were not presented to the contracting officer for final decision prior to the filing of Parwan's appeal. DLA also moves to dismiss the entire appeal for failure to state a claim upon which relief can be granted. Parwan opposes the motion. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION On 23 April 2012, DLA issued Solicitation No. SP0600-12-R-0208 (solicitation) seeking proposals for the transportation of government-owned fuel products in Afghanistan (R4, tab 1 at 47). 1 Amendment No. 0005 to the solicitation 1 Citations to the Rule 4 file are to the consecutively-numbered pages unless otherwise indicated. contained answers to questions from offerors about a number of issues, including three related to convoy security (R4, tab 2 at 93-94). 2 In response to those security questions, DLA informed offerors that "vendors considering the use of armed private security will not be considered for award" (id. at 94). Offerors were also informed that there would be "no US Government provided escorts" for the contractor-provided services (id.). Parwan interpreted those responses to mean that the use of security for any particular convoy would be left to the contractor's discretion, and that "if [the contractor] did not provide security [it] bore the risk of non-performance for each unsuccessful shipment" (compl. ,r 8). Accordingly, when Parwan submitted its proposal on 27 June 2012, it did not include costs for convoy security (id. ,r,r 8, 58). On 28 November 2012, DLA awarded Contract No. SP0600-13-D-9504 (contract) to Parwan (R4, tab 6 at 1). This fixed-price commercial item contract consisted of a two-year base period from the date of award through 31 December 2014, and a one-year option period from 1 January 2015 through 31 December 2015, for a total estimated contract value of $12,902,090 (R4, tab 6 at 126-27; gov't mot. at 1-2). The contract included Federal Acquisition Regulation (FAR) clause 52.243-1, CHANGES-FIXED-PRICE (AUG 1987), ALTERNATE IV (APR 1984), which states in relevant part: (a) The Contracting Officer may at any time, by written order, and without notice to the sureties, if any, make changes within the general scope of this contract in any one or more of the following: (1) Specifications. (2) Work or services. (3) Place of origin. (4) Place of delivery. (5) Tonnage to be shipped. (6) Amount of Government-furnished property. (b) If any such change causes an increase or decrease in the cost of, or the time required for, performance of any part of the work under this contract, whether or not changed by the order, the Contracting Officer shall make an equitable adjustment in the contract 2 When receiving a motion to dismiss for lack of jurisdiction, the facts supporting jurisdiction are subject to fact-finding based on the Board's review of the records. See, e.g., CCJE & Co., ASBCA Nos. 58355, 59008, 14-1 BCA ,r 35,700 at 174,816. 2  price, the delivery schedule, or both, and shall modify the contract. (R4, tab 6 at 143) The contract also included two clauses relevant to Parwan's performance under this contract - clause 952.225-0004, COMPLIANCE WITH LA ws AND REGULATIONS (DEC 2011); and clause 252.225-7995, CONTRACTOR PERSONNEL PERFORMING IN THE UNITED STA TES CENTRAL COMMAND AREA OF RESPONSIBILITY {DEVIATION 2011-00004) (APR 2011) (R4, tab 6 at 133, 147). These clauses imposed upon Parwan two key obligations. First, under both clauses, Parwan was required to comply with all host nation laws (id.). Second, under clause 252.225-7995( c ), "[u ]nless specified elsewhere in the contract, the Contractor is responsible for all logistical and security support required for contractor personnel engaged in this contract" ( id. at 147). The contract's performance work statement (PWS) reiterated Parwan's obligation to comply with host nation laws, stating that Parwan must "remain in full compliance with all laws, decrees, labor standards, and regulations of the Afghanistan Government" (R4, tab 1 at 47). The PWS also stated that the U.S. Government "will not provide security escort for trucks transporting fuel product in Afghanistan" (id. at 48). In February 2013, after Parwan began making deliveries, the Afghan government issued a decree stating that all convoys delivering fuel for the U.S. Government using "southern routes" would henceforth be required to use security escorts (R4, tab 29 at 492, 586). The decree further stated that private companies were no longer authorized to provide security escorts, and that Parwan would be required to use the security services of the Afghan Public Protection Force (APPF), a state-owned enterprise of the Afghan Ministry of the Interior (id.). By email dated 7 March 2013, Parwan informed DLA that the new requirement to use security escorts had caused security costs for all companies transporting fuel for the U.S. Government to "skyrocket," and that for Parwan in particular, the increased costs had become "almost prohibitive" (app. supp. R4, tab 38 at 4). By email dated 8 March 2013, DLA advised Parwan that it was working "to find a payment solution" (id. at 3). On 24-25 April 2013, representatives from DLA and Parwan met to discuss the increased security costs and the possibility of Parwan filing a request for equitable adjustment (REA). Pursuant to that meeting, DLA instructed Parwan to submit an REA "for the change to the method of shipping and the attendant increase in costs incurred by Parwan." (Compl. ,r,r 15-16) By email dated 26 May 2013, Parwan notified DLA that it was experiencing delays in delivery that it attributed to the 3 I security escorts (app. supp. R4, tab 39). The parties thereafter exchanged additional emails discussing the delays, with DLA twice requesting information from Parwan concerning its "issues" with APPF (R4, tabs 10-11; app. supp. R4, tabs 40-43). By email dated 17 June 2013, DLA also requested that Parwan advise it of what actions could be taken by DLA to "alleviate the delays in delivery" (app. supp. R4, tab 42). It is unclear whether Parwan ever responded to this request. By email dated 11 July 2013, DLA requested additional information regarding Parwan's working relationship with APPF, including "systemic problems" regarding scheduling and cancellations. Parwan responded that same date, stating with respect to the systemic problems that "(w]e do not really get told why a convoy is cancelled, usually the reason given is security, we do know at times that they do not always have the assets available." (App. supp. R4, tab 46 at 53, 55) In July 2013, Parwan submitted two REAs to the contracting officer, neither of which are at issue in this appeal. In an email dated 3 September 2013, Parwan submitted a third REA (REA 3) seeking reimbursement for increased costs associated with the security escorts, which it described as "excessive" (R4, tab 15 at 243). By email dated 20 September 2013, Parwan amended REA 3 to include additional costs (R4, tab 16). In October, November and December 2013, Parwan emailed the contracting officer requesting an update on the status of its REAs, including REA 3 (R4, tabs 17-18, 20). In those emails, Parwan mentioned that it was experiencing financial difficulties while the REAs were pending, noting that Parwan "could be upside-down financially on this contract," that if the REAs were not approved it would be "running at an extensive loss" and it did not "know our current financial position as we have so many items pending" (R4, tab 17 at 276-77, tab 20 at 340). By email dated 2 December 2013, DLA informed Parwan "[a]s a reminder" that APPF was the "only authorized armed security provider" under Afghan law, and "[i]f caught using unauthorized armed security you risk negative reports and/or losing your entire contract" (R4, tab 19). By letter dated 27 March 2014, DLA denied Parwan's requests for reimbursement, stating that the increased security costs were not reimbursable under the contract (R4, tab 24 at 456). By letter dated 22 April 2014, the contracting officer reiterated to Parwan that, "per the terms of the contract, DLA Energy does not reimburse or pay any security fees, including any fees from APPF security" (R4, tab 25 at 459). By letter dated 31 May 2015, Parwan filed its certified claim seeking a contracting officer's final decision on several issues raised in its REAs (R4, tab 29). 4 With respect to the security costs, the claim sought $1,022,440, 3 and made the following points: a. At the time it submitted its bid proposal to DLA, Parwan was not obligated to use any armed security for its convoys, and therefore did not include any security costs in its bid proposal; b. In February 2013, the Afghan Ministry of the Interior informed Parwan that it would be required to begin using APPF security escorts at the end of that month; c. The terms of the contract required Parwan to comply with all U.S. and host nation la~s; and d. Because Afghan law now required it to use APPF security escorts, an obligation "reinforced and reiterated" by DLA employees, Parwan was entitled to the increased costs of performance. (Id. at 492-93) Parwan's claim included invoices reflecting the increased security costs (R4, tab 29 at 595-617). Parwan also sought a contract modification to reflect the new security obligation, which it argued was a reasonable request because the additional expenditure "was not contemplated in the award costs, is required by Afghan law and indirectly by the contract, and may result in financial ruin for the company" (id. at 493). Specifically with respect to the increased security costs, Parwan's claim made no mention of the impact of delivery delays. 4 By letter dated 14 April 2016, DLA issued the contracting officer's final decision, which denied the portion of Parwan's claim seeking reimbursement for the increased security costs (R4, tab 35). DLA denied changing the contract requirements, citing the contract provisions that required Parwan to comply with host nation law and that assigned responsibility for security to Parwan. DLA also pointed out that a fixed-price contract such as Parwan's places upon the contractor "maximum risk and full responsibility for all cost and resulting profit or loss" meaning that ''the use of 3 That amount has now increased to $1,044,660 to reflect invoices Parwan received from APPF after submission of its claim (compl. ,r,r 32-33). 4 Parwan's claim also sought recovery for costs associated with delays in downloading fuel; however, those costs are unrelated to the increased security costs and are not at issue in this appeal (R4, tab 29 at 493-95). 5 APPF and any costs incurred ... are not reimbursable under this contract." (Id. at 707) Parwan filed its notice of appeal by letter dated 1 July 2016. The appeal challenges only that portion ofDLA's decision relating to Parwan's increased security costs. DECISION Parwan's complaint asserts four grounds for relief. 5 Counts I and II allege that DLA changed the contract requirements, with Count II specifically alleging that the new security escort requirement constituted a constructive change ( comp I. ,i,i 34-54). In Count III, Parwan alleges that a 15% increase in its overhead costs and severe delivery delays rendered its contract with DLA commercially impracticable (id. ,i,i 55-62). Count IV alleges that Parwan "detrimentally relied" upon DLA's repeated assurances that the increased costs ''would be taken care of," and that based upon those assurances, Parwan continued performance with the understanding that it would be "made whole" through an equitable adjustment (id. ,i,i 63-70). DLA has moved to dismiss Counts III and IV of the complaint, arguing that the Board lacks jurisdiction to entertain these allegations because they were never presented to the contracting officer. DLA has alternatively moved to dismiss the entire appeal for failure to state a claim upon which relief can be granted. We address the jurisdictional argument first. The Board's Jurisdiction over Counts III and IV Parwan bears the burden of proving the Board's jurisdiction by a preponderance of the evidence. Reynolds v. Army & Air Force Exchange Service, 846 F.2d 746, 748 (Fed. Cir. 1988); United Healthcare Partners, Inc., ASBCA No. 58123, 13 BCA ,i 35,277 at 173,156. Pursuant to the Contract Disputes Act (CDA), "[e]ach claim by a contractor against the Federal Government relating to a contract shall be submitted to the contracting officer for a decision." 41 U.S.C. § 7103(a)(l). "The scope of [an] appeal is determined by the claim originally submitted to the contracting officer for a final decision." MACH II, ASBCA No. 56630, 10-1 BCA i! 34,357 at 169,673. Accordingly, we do not possess jurisdiction over new claims that were not previously presented to the contracting officer. Id. To determine whether a claim is new we examine whether it derives from the same set of common or related operative facts as the claim presented to the contracting officer and seeks the same or similar relief. Scott Timber Co. v. United States, 333 ·F .3d 1358, 1365 (Fed. Cir. 2003); The Public Warehousing Company, ASBCA No. 56022, 5 For purposes of this decision we will refer to those four grounds for relief as Counts I through IV. 6  11-2 BCA ,r 34,788 at 171,227. If the operative facts in the pleadings are essentially the same as those presented in the claim, they are within the scope of the appeal. MA CH II, 10-1 BCA ,r 34,357 at 169,673. Allegations presenting a new legal theory of recovery, or the introduction of additional facts that do not alter the nature of the original claim, do not constitute a new claim if they are based upon the same operative facts included in the original claim. Trepte Construction Co., ASBCA No. 38555, 90-1 BCA ,i 22,595 at 113,385-86. Where proof of the new legal theory includes operative facts differing from those in the original claim, however, "the essential nature of the claim has been changed and we do not have jurisdiction over the new claim until it is presented to the contracting officer for decision." Shams Engineering & Contracting Co. & Ramli Co., ASBCA Nos. 50618, 50619, 98-2 BCA ,i 30,019 at 148,525. The claim must provide a "clear and unequivocal statement that gives the contracting officer adequate notice" of its claim. K-Con Building Systems, Inc. v. United States, 778 F.3d 1000, 1005 (Fed. Cir. 2015) (quoting Contract Cleaning Maintenance, Inc. v. United States, 811 F.2d 586, 592 (Fed. Cir. 1987)). Count III - Commercial Impracticability Count III of Parwan's complaint asserts that the new security escort requirement rendered the contract commercially impracticable. To establish commercial impracticability, a contractor must show that "(l) a supervening event made performance impracticable; (2) the non-occurrence of the event was a basic assumption upon which the contract was based; (3) the occurrence of the event was not the contractor's fault; and (4) the contractor did not assume the risk of occurrence." Spindler Construction Corp., ASBCA No. 55007, 06-2 BCA ,i 33,376 at 165,462 (citing Seaboard Lumber Company v. United States, 308 F.3d 1283, 1294-95 (Fed. Cir. 2002)). The doctrine applies where "the costs of performance amount to commercial senselessness ... [not] just because performance cannot be achieved most economically." Safety Training Systems, Inc., ASBCA Nos. 57095, 57166, 14-1 BCA ,i 35,509 at 174,051 (citing Natus Corp. v. United States, 371 F.2d 450,457 (Ct. Cl. 1967)). Thus "[a] showing of simple economic hardship is not sufficient." American Combustion, Inc., ASBCA No. 43712, 94-3 BCA ,i 26,961 at 134,243 (citingJennie-0 Foods, Inc. v. United States, 580 F.2d 400,410 (Ct. Cl. 1978)). Count III specifically alleges that "[a]t the time of Contract formation, both parties assumed transportation security was neither needed nor required to ship products along certain routes in Afghanistan," and for this reason, the solicitation did not include a requirement "mandating the use of APPF escorts" (compl. ,i,i 56-57). Count III further alleges that based upon this understanding, Parwan did not include security costs in its bid price (id. ,r 58). Count III then asserts that the subsequent requirement to use security escorts rendered the contract commercially senseless, because Parwan incurred a 15% increase in overhead costs and experienced severe delivery delays due to difficulties in coordinating shipments (comp 1. ,i,r 61-62). 7  DLA contends that Count III is based upon materially different facts than those alleged in Parwan's claim, which DLA notes did not mention commercial impracticability (gov't mot. at 7). Parwan disagrees, arguing that Count III merely presents a new legal theory rather than a new claim (app. opp'n at 25-27). Parwan describes the claim as having asserted that the new security requirement was "unexpected" and "unforeseen," but fails to identify any specific language in the claim that supports this assertion (id. at 26). Parwan also notes that the 15% increase in security costs can easily be calculated from the invoices attached to the claim (id.). With respect to the complaint's references to delivery delays, Parwan maintains that they "derive directly from the change in contract" addressed in its claim, but it, again, fails to identify any language in the claim that supports this assertion (id. at 27). We agree with DLA. The operative facts of Parwan's claim are straightforward and simple: 1) Parwan did not include any costs for security escorts at the time it submitted its bid because the solicitation did not require it; 2) after performance began, Afghan law changed, requiring Parwan to use security escorts if it wished to operate in Afghanistan; 3) Parwan is contractually required to comply with host nation law; and 4) as a result, Parwan incurred additional costs exceeding the contract price (R4, tab 29 at 492-93). The claim does not address what the parties believed with respect to the need for security escorts, nor does it mention a reason the solicitation did not require security escorts (id.). Although Parwan submitted invoices for the security escort costs with its claim, the claim document itself only minimally addresses the impact of those costs, and it is silent with respect to the impact of delivery delays (id. at 492, 595-617). While it is true that in determining the scope of the claim we may "examine the totality of the correspondence ... [and] the continuing discussions, between the parties," Public Warehousing, 11-2 BCA ,r 34,788 at 171,228, the record here does not support including commercial impracticability within the scope of Parwan's claim. With respect to the impact of the increased security costs, although there are other references to financial hardship contained in the record, they are vague and conclusory at best (R4, tabs 15-18, 20; app. supp. R4, tab 38). In addition, while the record indicates the parties discussed delivery delays on several occasions in 2013 prior to the filing of REA 3 (R4, tabs 10-11; app. supp. R4, tabs 29-43, 46), it contains no evidence Parwan ever communicated to DLA that it believed the impact of those delays was so severe that it rendered the contract commercially senseless. Parwan's claim is in essence a question of contract interpretation, i.e., the impact of the change in Afghan law upon Parwan's contractual obligations. Count III goes far beyond that limited analysis, altering the claim's essential nature by requiring factual inquiry into whether DLA shared Parwan's a~sumption that security escorts would not be required, why security escorts were not required by the solicitation and whether the increased costs and the impact of delivery delays were so great that they rose to the 8 level of commercial impracticability. Because Parwan's claim did not provide a "clear and unequivocal statement that [gave] the contracting officer adequate notice" it was alleging commercial impracticability, we do not possess jurisdiction over Count III of Parwan's complaint. K-Con Building Systems, 778 F.3d at 1005. Count IV-Detrimental Reliance Count IV of Parwan's complaint alleges that shortly after the Afghan government imposed the new security requirement, DLA provided assurances that a "payment solution" would be found (compl. ,r 14). Count IV further alleges that Parwan, relying to its detriment upon those assurances, continued to perform and "absorb[ed] the additional costs with an understanding that [it] would be made whole th.rough an equitable adjustment" (compl. ,r,r 65-69). In its opposition brief, Parwan elaborates on Count IV and argues that based upon this detrimental reliance, DLA is estopped from denying liability for the security costs (app. opp'n at 27-28). Characterizing Count IV as a new legal theory rather than a new claim, Parwan avers that it "emerges directly" from two facts referenced in the claim-I) that in February 2013 Parwan was required to use security escorts in order to fulfill its contractual obligations; and 2) that this "change to its contract requirements was 'reinforced and reiterated_ by DLA employees'" (id. at 27). We do not agree that the difference here is merely the legal theory in the claim. The two statements referenced by Parwan cannot be reasonably interpreted as informing DLA that Parwan was asserting an estoppel claim. Equitable estoppel requires: 1) some form of misleading conduct, which may consist of silence or inaction as well as affirmative action, leading another to reasonably infer that rights will not be asserted against it; 2) reliance upon the misleading conduct; and 3) material prejudice due to the reliance. Mabus v. General Dynamics C4 Systems, Inc., 633 F.3d 1356, 1359 (Fed. Cir. 2011). There is nothing in Parwan's claim asserting that DLA assured Parwan it would be paid, either falsely or otherwise, or that Parwan was relying upon any such assurances in continuing to incur the additional costs. Count IV introduces a new set of facts that are wholly unrelated to the claim and that materially alter the claim's essential nature. We therefore find that Count IV is also a new claim over which we do not possess jurisdiction. Breach of Implied Duty to Cooperate In its opposition brief, Parwan for the first time alleges that DLA breached its implied duty to cooperate, and that this breach constituted a constructive change to the contract (app. opp'n at 15) (citing R. W Jones Construction, Inc., IBCA No. 3656-96, 99-1 BCA ,r 30,268 at 149,681). DLA characterizes this allegation as an implicit request by Parwan to amend its complaint, which it argues should be denied because it 9 I l represents a new claim not previously presented to the contracting officer (gov't reply at 15). Although the Board may permit a party to amend its pleadings upon conditions fair to both parties, see Board Rule 6( d), the Board will deny a request to amend a complaint if the amendment is essentially a new claim based upon operative facts not already presented to the contracting officer. GSC Construction, Inc., ASBCA No. 59046, 15-1 BCA ,r 35,882 at 175,429. The implied duty to cooperate arises out of the implied duty of good faith and fair dealing that every contract contains. Metcalf Construction Company v. United States, 742 F.3d 984, 991 (Fed. Cir. 2014). The duty requires the government to do "what is reasonably necessary to enable the contractor to perform." SEE Engineering, Inc., ASBCA No. 39728, 94-2 BCA ,r 26,810 at 133,352. Parwan's opposition brief alleges that DLA breached this duty when it took over a year to deny Parwan's requests that it be reimbursed for the increased security costs (app. opp'n at 15-17). Parwan identifies no provision in the claim itself supporting its contention that DLA breached this duty. Instead, Parwan points to the allegations in the complaint that even though it began requesting reimbursement for the security costs as early as March 2013, DLA did not deny that request until 27 March 2014 (app. opp'n at 16-17 (citing compl. ,r,r 12-24, 65-68)). It is not the complaint, however, but the claim that forms the basis for our jurisdiction. Madison Lawrence, Inc., ASBCA No. 56551, 09-2 BCA ,r 34,235 at 169,207; MACH II, IO-I BCA ,r 34,357 at 169,673. As DLA notes, Parwan's claim makes no reference to its earlier requests for reimbursement or any unreasonableness on DLA's part in resolving those requests (gov't reply at 15; R4, tab 29 at 492-93). We therefore hold that Parwan's contention that the government breached its duty to cooperate represents a new claim not previously presented to the contracting officer over which we do not possess jurisdiction. 6 Failure to State a Claim upon which Relief can be Granted We next tum to DLA's contention that Parwan's complaint fails to state a claim upon which relief can be granted (gov't mot. at 9-19). The Board will grant a motion to dismiss for failure to state a claim when the complaint fails to allege facts "'plausibly suggesting (not merely consistent with)' a showing of entitlement to relief." Cary v. United States, 552 F.3d 1373, 1376 (Fed. Cir. 2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557 (2007)); American General Trading & Contracting, WLL, ASBCA No. 56758, 12-1 BCA ,r 34,905 at 171,640. The 6 DLA also urges the Board to reject Parwan's breach allegation because it would be futile on the merits (gov't reply at 14). Based upon our holding here, we need not consider that argument. 10 allegation "must be enough to raise a right to relief above the speculative level." Cary, 552 F.3d at 1376. In addition, the "complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). We "must accept well-pleaded factual allegations as true and must draw all reasonable inferences in favor of the claimant." Kellogg Brown & Root Services, Inc. v. United States, 728 F.3d 1348, 1365 (Fed. Cir. 2013). We are not required, however, to accept as true legal conclusions inaccurately portrayed as factual allegations. Exe/is, Inc., ASBCA No. 60131, 17-1 BCA ,r 36,679 at 178,606 (citing Acceptance Ins. Companies, Inc. v. United States, 583 F.3d 849, 853 (Fed. Cir. 2009)). In addition to reviewing the allegations contained in the complaint, the Board rriay consider "matters incorporated by reference or integral to the claim, items subject to judicial notice, [and] matters of public record." A&D Auto Sales, Inc. v. United States, 748 F.3d 1142, 1147 (Fed. Cir. 2014) (quoting SB Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure§ 1357 (3d ed. 2004)). Here, the focus of the complaint is the purported change in the contract's performance requirements from what was originally contemplated by the parties. Thus we may properly consider the contract's terms in determining whether Parwan's complaint states a claim upon which relief can be granted. See CCIE & Co., 14-1 BCA ,r 35,700 at 174,816. Counts III and IV having already been dismissed for lack of jurisdiction, we are left only to evaluate the sufficiency of Counts I and II. Although far from a model of clarity, Count I appears to assert entitlement under the Changes clause itself (compl. ,r,r 34-48). 7 However, nowhere in the complaint does Parwan allege the existence of a written change order, which the Changes clause requires. See FAR 52.243-l(a). Thus, to the extent that Count I seeks recovery strictly under the Changes clause, it fails to allege facts showing Parwan is entitled to relief. In Count II, Parwan seeks relief under a theory of constructive change. "A constructive change occurs when a contractor performs work beyond the contract requirements, without a formal order under the Changes clause, due either to an express or implied informal order from an authorized government official or to government fault." Circle, LLC, ASBCA No. 58575, 15-1 BCA ,r 36,025 at 175,974 (citing Bell/Heery v. United States, 739 F.3d 1324, 1335 (Fed. Cir. 2014)). Thus in the absence of government action or fault, the constructive change doctrine cannot form 7 Parwan's opposition brief further confuses the issue by recharacterizing Count I as a constructive change claim and Count II as a claim for breach of the implied duty to cooperate (app. opp'n at 8, 10-18). Notwithstanding the confusion, we will proceed by examining the counts as they appear in the complaint. 11 1 1 the basis for recovery. -Jnt'l Data Prods. Corp. v. United States, 492 F.3d 1317, 1325 (Fed. Cir. 2007). Count II incorporates and expands upon an allegation appearing in Count I that in late February 2013, DLA began "ordering" Parwan to use security escorts (compl. ,i 40), alleging that that this "demand" constituted a constructive change to the contract (comp 1. ,i,i 49, 51, 54 ). We are not required, however, to give deference to Parwan' s legal conclusion regarding the effect ofDLA's "demand." Exe/is, 17-1 BCA ,i 36,679 at 178,606. The terms of the parties' contract explicitly allocated to Parwan responsibility for all security support required for contractor personnel, and further required Parwan to comply with all host nation laws (R4, tab 1 at 47-48, tab 6 at 123, 147). Moreover, as the complaint itself concedes, it was the Afghan government, not DLA, that mandated the use of security escorts (compl. ,i 12). 8 We therefore find that DLA's "orders" were not intended to effect a change to the contract but rather to enforce the contract's terms. Thus a critical element of the constructive change doctrine-that the purported change was ordered by the government-is missing from Count II. Additionally, in the alternative, we hold that Counts III and IV also fail to state a claim for relief. With respect to Count III, we note that commercial impracticability only applies where the contractor did not assume the risk that the supervening event might occur. Spindler Construction, 06-2 BCA ,i 33,376 at 165,462. In the case of a fixed-price contract, however, that element cannot be established because it is the contractor, not the government, who bears the risk of unexpected costs. Safety Training Systems, 14-1 BCA ,i 35,509 at 174,052. Parwan's complaint alleges no fact that would entitle it to shift that risk back to DLA. With respect to Count IV, we note that while equitable estoppel "may be raised either as an affirmative defense or as grounds to prevent the defendant from raising a particular defense," it is not an independent cause of action that Parwan can assert. Carlson v. Arnot-Ogden Memorial Hospital, 918 F.2d 411,416 (3d Cir. 1990); RGW Communications Inc. d/b/a Watson Cable Co., ASBCA Nos. 54495, 54557, 05-2 BCA ,i 32,972 (Board is without jurisdiction to entertain contracts implicit in law). 9 8 Paragraph 12 of the complaint is ambiguous as to whether it alleges that the requirement to use APPF security was imposed by the Afghan Ministry of interior or the U.S. Government. Parwan's brief makes clear that it is alleging that the Afghan Ministry imposes the requirement (app. opp'n at 5). 9 DLA argues that the same would be true with respect to promissory estoppel (gov't reply at 13-14). While we do not believe that Parwan was asserting a claim based upon promissory estoppel, even if it were, Count IV would still fail. Although promissory estoppel can be used to create an affirmative cause of action, against parties other than the government, Jablon v. United States, 657 12 Accordingly, even ifwe found that Parwan had met the CDA'sjurisdiction requirements for Counts III and IV, we would nevertheless dismiss them for failure to state a claim upon which relief can be granted. CONCLUSION The government's motion is granted. Counts III and IV of the complaint are dismissed for lack of jurisdiction. The remaining counts at issue in this appeal, Counts I and II, are dismissed for failure to state a claim upon which relief can be granted. Dated: June 25, 2018 DAVID D' ALESSANDRIS Administrative Judge Armed Services Board of Contract Appeals I concur I concur ~,,____- RICHARD SPIACKLEFORD J. REID PROUTY Administrative Judge Administrative Judge Acting Chairman Vice Chairman Armed Services Board Armed Services Board of Contract Appeals of Contract Appeals F .2d 1064, 1068 (9th Cir. 1981 ), "[ a]n obligation based upon promissory estoppel is a type of contract implied-in-law ... and cannot be asserted against the government." RGW Communications, 05-2 BCA ,i 32,972 at 163,338 n.13 ( citations omitted). 13  I certify that the foregoing is a true copy of the Opinion and Decision of the Armed Services Board of Contract Appeals in ASBCA No. 60657, Appeal of Parwan Group Company, rendered in conformance with the Board's Charter. Dated: JEFFREY D. GARDIN Recorder, Armed Services Board of Contract Appeals 14 

T.C. Memo. 1997-192 UNITED STATES TAX COURT RICHARD W. KOCHANSKY AND MONICA L. MILLER, F.K.A. MONICA L. KOCHANSKY, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent Docket No. 21791-93. Filed April 24, 1997. Richard W. Kochansky, pro se. Robert S. Scarbrough, for respondent. MEMORANDUM OPINION DAWSON, Judge: This case was assigned to Special Trial Judge D. Irvin Couvillion pursuant to section 7443A(b)(4)and  - 2 - Rules 180, 181, and 183.1 The Court agrees with and adopts the opinion of the Special Trial Judge, which is set forth below. OPINION OF THE SPECIAL TRIAL JUDGE COUVILLION, Special Trial Judge: This matter is before the Court on respondent's motion for entry of decision as to which Richard W. Kochansky (petitioner) has filed an objection. In two notices of deficiency, respondent determined the following deficiencies, additions to tax, and penalties for the years indicated:2 Additions to Tax Sec. Sec. Sec. Sec. Year Deficiency 6651(a)(1) 6653(a) 6654 6662(b)(1) 1988 $8,115 $2,029 $406 $36 -- 1989 4,035 967 -- -- $807 1990 2,022 -- -- -- 404 At the time the petition was filed, petitioners were legal residents of Idaho. On the date this case was calendared for trial, the parties filed with the Court a written stipulation to be bound (the stipulation). There was no evidence adduced on that date other than the stipulation and the exhibits attached thereto. 1 Unless otherwise indicated, section references are to the Internal Revenue Code in effect for the years in issue. All Rule references are to the Tax Court Rules of Practice and Procedure. 2 The deficiencies, additions to tax, and penalty for the years 1988 and 1990 are against Richard W. Kochansky alone. For 1989, the deficiency, addition to tax, and penalty are against Richard W. Kochansky and Monica L. Miller.  - 3 - Essentially, the stipulation is an agreement by the parties to be bound by the outcome of an appellate case involving petitioner's 1987 tax year, which, at the time this case was calendared for trial, was pending before the United States Court of Appeals for the Ninth Circuit. The litigation in the appellate case also originated with this Court, the results of which are set out in Kochansky v. Commissioner, T.C. Memo. 1994- 160. The appeal in that case was not resolved until sometime after the stipulation in the instant case was filed. In Kochansky v. Commissioner, 92 F.3d 957 (9th Cir. 1996), the Court of Appeals affirmed in part and reversed in part T.C. Memo. 1994- 160 regarding petitioner's 1987 tax year. The deficiency in tax and the imposition of additions to tax under sections 6651(a)(1) and 6661 were affirmed, and the imposition of the addition to tax under section 6653(a) was reversed. The decision, as thus modified, thereafter became final. Following petitioner's failure to execute decision documents in the instant case in accordance with the stipulation, respondent filed the motion for entry of decision. The decision documents prepared by respondent are in accordance with the holding of the Court of Appeals for  - 4 - petitioner's 1987 tax year. Kochansky v. Commissioner, supra. Petitioner does not argue to the contrary.3 Petitioner objects to respondent's motion for entry of decision on the ground that the Court of Appeals based its holding on the theory that petitioner had made an anticipatory assignment of income to his former spouse and that under the rationale of Lucas v. Earl, 281 U.S. 111 (1930), such income was taxable to petitioner when the income was subsequently realized, even though a portion of this income (one-half) had been paid to petitioner's former spouse. The Court of Appeals affirmed this Court's holding that rejected petitioner's contention that the portion of the subject income, when realized, was taxable income to his former spouse and was not taxable to petitioner. The instant case involves identical payments of income that were 3 The proposed decision, which is part of the motion, includes concessions by respondent of the sec. 6653(a) addition to tax for the 1988 tax year and the penalty under sec. 6662(b)(1) for the 1989 and 1990 tax years in accord with the Court of Appeals' opinion. Respondent further concedes the addition to tax under sec. 6654(a) for the 1988 tax year and that petitioner Monica L. Miller is exonerated from liability as an innocent spouse under sec. 6013(e) for the 1989 tax year. As a result of this concession as to petitioner Monica L. Miller, she executed the decision documents prepared by respondent and is not a party with respect to respondent's motion for entry of decision. The stipulation also includes a reduction of the income adjustment against petitioner for the year 1988 from $28,800 determined in the notice of deficiency to $7,200.  - 5 - realized during the years 1988, 1989, and 1990.4 Petitioner, in his objection to respondent's motion, alleges: 1. The case of Kochansky v. Commissioner, T.C. Memo. 94-160 at 92 F.3d 957 (1996) was decided by the Court of Appeals on the sole issue raised of "assignment of anticipatory income". 2. In those cases pending before this Tax Court, Petitioner has other issues to be raised dealing with tax liability which were not raised in the Court of Appeals case cited above, to wit: A. Community Property issue; B. IRC §1041 3. Petitioner agreed to be bound on the issue of "assignment of anticipatory income" as presented in the Court of Appeals, but never intended to waive other issues in other cases. 4 Briefly stated, petitioner is an attorney who had filed a medical malpractice action in 1984 on a contingent fee basis. At the time, petitioner was married to Carol A. Kochansky (Carol). Petitioner and Carol were divorced in 1985. In the property settlement between them, it was agreed that any fees earned from this litigation (net of petitioner's out-of-pocket costs) would be paid one-half to petitioner and one-half to Carol. The medical malpractice case was settled in 1987, and a portion of the contingent fee was paid in 1987, of which a portion was paid to petitioner and the remainder was paid to Carol pursuant to the property settlement agreement. On his 1987 income tax return, petitioner reported only the portion of the fee he had received. This Court and the Court of Appeals for the Ninth Circuit both held that the property settlement agreement between petitioner and Carol constituted an anticipatory assignment of income, and, under Lucas v. Earl, 281 U.S. 111 (1930), the total amount of the fee paid during 1987 constituted gross income to petitioner. The instant case involves additional amounts of the contingent fee from the same medical malpractice case that were paid to petitioner during 1988, 1989, and 1990, half of which were remitted to petitioner's former spouse Carol pursuant to the property settlement.  - 6 - Petitioner, in essence, is urging a different theory upon which his liability as to the income in question for 1988, 1989, and 1990 should be determined. Petitioner made the same argument in the Court of Appeals as to his 1987 tax year, and that argument was addressed as follows: Kochansky further argues that under Idaho's community property law, Idaho Code 32-906, Carol had a community property interest in the contingent fee at the time of the divorce. Upon divorce, that interest became her sole and separate property, he argues, and therefore she is solely responsible for paying tax on her portion of the malpractice contingency fee. We decline to consider this argument because Kochansky did not raise it in the Tax Court and because the necessary facts to support the existence of a community property interest have not been developed. See United States v. Kimball, 896 F.2d 1218, 1219 (9th Cir. 1990) ("As a general rule, we will not consider an issue raised for the first time on appeal."), vacated in part on other grounds, 925 F.2d 356 (9th Cir. 1991). [Kochansky v. Commissioner, 92 F.3d at 959.] The petition in the instant case contains no allegations that the income at issue in this case constituted community property income. In an amended petition that was subsequently filed, no allegations were made with respect to the income being community property income. No motions have been filed by petitioner for leave to file an amended petition in order to allege the character of the income at issue as community property income. The stipulation filed by the parties states, in pertinent part: 9. The parties hereby agree to be bound to the final outcome of the case of Kochansky v. Commissioner, T.C. Memo. 94-160 (Appeal to 9th Circuit Court of Appeals pending) as to the deficiencies and additions to tax raised in the  - 7 - current proceeding. Specifically, issues that Kochansky v. Commissioner, T.C. Memo. 94-160 (Appeal to 9th Circuit Court of Appeals pending) would control would be: a. If total receipts to petitioner's, Richard Kochansky's, trust account from the McNary v. Berghan lawsuit are finally determined to be taxable to petitioner in the above-referenced appealed case they will be additional taxable income to petitioner in this case in the amounts set forth in paragraph 2 of this stipulation. * * * * * * * 10. The Tax Court's final opinion in Kochansky v. Commissioner, T.C. Memo. 1994-160 (Appeal to 9th Circuit Court of Appeals pending) shall for all purposes be dispositive of all questions related to the issues in this case, and shall specifically operate as an adjudication on the merits of the settlement issues in this case, and shall specifically operate as an adjudication on the merits of the issues herein to the same extent as would a separate opinion on the merits of the questions related to the issues in this case. 11. A Decision shall be submitted in this case when the Decision in Kochansky v. Commissioner, T.C. Memo. 1994- 160 (Appeal to 9th Circuit Court of Appeals pending) becomes final under I.R.C. § 7481. There are no provisions in the stipulation allowing petitioner to place in issue other legal theories that would exonerate him from liability. Petitioner, however, contends that, on the date the stipulation was filed, which was the date the instant case had been calendared for trial, the Court indicated that petitioner would be entitled to raise "other issues". Specifically, petitioner alleges: 4. On September 26, 1994, at the time and place scheduled for trial in this matter, Special Trial Judge D. Irvin Couvillion stated that the case would be continued in the event that Petitioner desired to raise other issues not before the Court of Appeals. Said statement is a matter of  - 8 - record, but Petitioner does not presently have a transcript copy to attach hereto. 5. In light of Petitioner's intent, the direction of Judge Couvillion and Petitioner's right to due process, Petitioner desires that this case proceed to trial on other issues, and that Respondent's Motion for Entry of Decision be denied. Petitioner misconstrues what the Court said or indicated at the time the stipulation was filed. The Court intended to allow petitioner the opportunity to litigate other issues in the instant case, which were unrelated to the issues in the 1987 case, if there were any unrelated issues. At the time, the Court had not compared the opinions of this Court and the Court of Appeals as to the 1987 case with the pleadings in the instant case for the years 1988, 1989, and 1990. A review of both court opinions regarding petitioner's 1987 tax year and the pleadings in the instant case for the subsequent years indicates that there are no unrelated issues to be heard. The instant case involves the same issue that was decided by this Court and affirmed by the Court of Appeals. Kochansky v. Commissioner, T.C. Memo. 1994- 160, affd. in part, revd. in part 92 F.3d 957 (9th Cir. 1996). The stipulation in the instant case states unequivocally that the parties agreed "to be bound to the final outcome" of the 1987 case. There were no qualifying conditions or provisions in the stipulation of the instant case that would allow petitioner to assert a different legal theory as to the character of the income at issue for the years 1988, 1989, and 1990.  - 9 - A controversy before this Court may be settled by agreement of the parties. After the parties have entered into a binding settlement agreement, the actual merits of the settled controversy are without consequence. This Court has declined to set aside a settlement duly executed by the parties and filed with the Court in the absence of fraud or mutual mistake. Stamm Intl. Corp. v. Commissioner, 90 T.C. 315 (1988); Spector v. Commissioner, 42 T.C. 110 (1964). Petitioner has not established any basis for disavowal of the stipulation that he and respondent mutually assented to. The stipulation covers all issues before the Court in the instant case. Petitioner is bound by that agreement. He cannot raise other issues that are not in the pleadings or pursue other legal theories that are not in the pleadings and were not allowed in the stipulation. Respondent's motion for entry of decision will be granted. An appropriate order will be issued and decision will be entered for respondent. 

59 S.E.2d 223 (1950) 232 N.C. 59 In re JOHNSON'S ESTATE. No. 451. Supreme Court of North Carolina. May 3, 1950. *224 S. J. Bennett, Durham, for appellant. F. T. Dupree, Jr., Raleigh, R. A. Cotten, Fuquay Springs, for appellee. SEA WELL, Justice. The controversy with which this review is concerned is over the administration of the estate of K. B. Johnson, now pending before the Clerk of the Superior Court of Wake County, and the matter directly in controversy is the alleged interest of the said K. B. Johnson in the partnership property and assets of K. B. Johnson & Sons, an alleged partnership which the petition hereinafter referred to alleges to remain unadministered by the surviving partners of the said firm and to constitute assets unadministered by the preceding executor and administrator of the estate of the said K. B. Johnson, and still subsisting. Since the crux of the controversy is directly over the powers and duties of the surviving partners as affecting the present obligation, and liabilities to the estate, the following observations are pertinent by way of clarification. The death of a partner ordinarily dissolves the partnership as of that date. Article 2, Uniform Partnership Law, Sec. 59-61(4) of the General Statutes. Expressed in the singular, to avoid awkward grammatical expression, the legal estate of the deceased partner in the partnership property vests in the surviving partner for administration in winding up the partnership and paying the partnership debts. Sugarman on Partnership, Sec. 236; Sherrod v. Mayo, 156 N.C. 144, 72 S.E. 216, Ann. Cas.1912D, 1205. The surplus of the deceased partner's property interest in the partnership, *225 after the debts are paid and the partnership is wound up, belongs to his individual estate and goes to his personal representative or distributees, as the case may be; and it is sometimes said that their interest therein is equitable; In re Lichtblau's Estate, 1933, 146 Misc. 278, 261 N.Y.S. 863. The surviving partner stands to them in the relation of trustee charged with the duty of faithful management and accounting to those entitled to the surplus of the deceased partner's interest after settling the debts of the partnership and winding up its affairs. Coppersmith v. Upton, 228 N.C. 545, 46 S.E.2d 565; Walker v. Miller, 139 N.C. 448, 52 S.E. 125, 1 L.R.A.,N.S, 157, 111 Am.St.Rep. 805, 4 Ann.Cas. 601. At any rate the right of the surviving partner to administer the deceased partner's interest in the partnership is his by virtue of the survivorship and is separate and distinct from the ordinary administration of decedents' estates in the charge and jurisdiction of the Clerk of the Superior Court. Story on Partnership, sec. 344; Weisel v. Cobb, 114 N.C. 22, 18 S.E. 943; Hodgin v. Peoples' National Bank, 124 N.C. 540, 32 S.E. 887. The latter administration has nothing to do with the former except as some statute may empower the Clerk to take action, and then only to the extent, and upon the conditions manifest in such statute. The legal consequences of these principles as they apply to the case at bar will be dealt with in the conclusion. But first let us get clearly before us the factual history of the proceeding under review in brief summary so that it may be followed step by step. C. P. Dickson, a judgment creditor of the estate of K. B. Johnson, filed on August 31, 1949, a verified petition for the removal of T. Lacy Williams as administrator c. t. a., d. b. n., of the estate of K. B. Johnson, deceased, and for the appointment of a successor, such petition alleging the existence of unadministered assets of the estate, consisting of the unadministered interest of K. B. Johnson & Sons. The Clerk on the same day issued an order to T. Lacy Williams to show cause why he should not be removed as administrator c. t. a., d. b. n., for alleged "default in the due administration of the said estate." The order to show cause was duly served and returned on August 31, 1949. On September 13, 1949, C. P. Dickson filed an amended petition which contains no complaint of default in the administration by T. Lacy Williams. On September 19, 1949, the Clerk issued an order "that the said T. Lacy Williams be, and he hereby is discharged by this court as administrator c. t. a., d. b. n., on the estate of K. B. Johnson, deceased," and recited as the reason therefor "that the said T. Lacy Williams waived his right to further administer upon the estate of K. B. Johnson, deceased, and agreed that upon his final account heretofore filed he be discharged as administrator c. t. a., d. b. n., on the estate of K. B. Johnson, deceased." On the same day the Clerk issued an order reopening the estate and appointing W. L. Totten, Sr., as administrator, c. t. a., d. b. n. And also on the same day, without Totten having been made a party and without his participation, the Clerk issued an order to the purported surviving partners of K. B. Johnson & Sons requiring them to file a bond conditioned on the faithful performance of their duties in the settlement of the partnerhsip affairs pursuant to G.S. 59-74, and also to file with the Clerk a "full and complete inventory to date of all the assets of the partnership, including all real estate owned by said partnership, together with a schedule of the debts and liabilities existing at the time of the death of K. B. Johnson, the deceased partner; and to furnish the personal representative a copy of said inventory and schedule of debts as required under the statute, G.S. § 59-76." Thereafter, on October 25 1949, upon motion of H. W. Johnson for himself and the surviving partners, the time for filing the bond and inventory was extended by the Clerk to November 25, 1949. On December 1, 1949, no bond or inventory having been filed, the Clerk issued an order requiring the filing of the bond and inventory on or before December 7, 1949, "under penalty as prescribed by law." The proceeding reached the court below on appeal by the administrator from the denial by the Clerk of a motion to dismiss *226 the amended petition filed by C. P. Dickson, and to vacate the orders of September 19, 1949, and the supplemental order of December 1, 1949. The court below vacated and set aside the orders of September 19, 1949, and the supplemental order of December 1, 1949, and dismissed the proceeding on the ground that the Clerk of the Court was without jurisdiction. That the Clerk of the Court had jurisdiction to entertain a complaint on affidavit, in this case the verified petition of Dickson, and to issue an order to the administrator c. t. a., d. b. n., to show cause why he should not be removed, is clear. G.S. § 28-32. That the proceeding was obviated by the resignation and discharge of the administrator Williams and that upon such resignation and discharge a vacancy occurred is also clear, and the Clerk very properly appointed a successor. The order of September 19, 1949, requiring the surviving partners to give bond and file inventory and accounts, and the supplemental order of December 1, 1949, to the same effect commanding that the order theretofore made should be obeyed "under penalty as prescribed by law" were made without regard to the want of any sanction for their enforcement and in disregard of the remedial procedures provided in the statutes upon which the purported authority is based, G.S. §§ 59-74, 59-75, 59-76, 59-77. Such orders also appear to have been executed by the Clerk ex mero motu. G.S. § 59-74 provides: "Upon the death of any member of a partnership, the surviving partner shall, within thirty days, execute before the clerk of the superior court of the county where the partnership business was conducted, a bond payable to the state of North Carolina, with sufficient surety conditioned upon the faithful performance of his duties in the settlement of the partnership affairs. The amount of such bond shall be fixed by the clerk of the court; and the settlement of the estate and the liability of the bond shall be the same as under the law governing administrators and their bonds." The bond required by G.S. § 59-74 is primarily for the protection of those interested in the surplus of the deceased partner's estate remaining after the affairs of the partnership have been wound up. Coppersmith v. Upton, 228 N.C. 545, 46 S.E. 2d 565. Such a bond filed now would have no retroactive effect or become liable for any maladministration theretofore occurring. G.S. § 59-75 provides: "Upon the failure of the surviving partner to execute the bond provided for in § 59-74, the clerk of the superior court shall, upon application of any person interested in the estate of the deceased partner, appoint a collector of the partnership, who shall be governed by the same law governing an administrator of a deceased person." But the remedial procedure provided herein has not been invoked. G.S. § 59-76 provides: "When a member of any partnership dies the surviving partner, within sixty days after the death of the deceased partner, together with the personal representative of the deceased partner, shall make out a full and complete inventory of the assets of the partnership, including real estate, if there be any, together with a schedule of the debts and liabilities thereof, a copy of which inventory and schedule shall be retained by the surviving partner, and a copy thereof shall be furished to the personal representative of the deceased partner." G.S. § 59-77 provides: "If the surviving partner neglect or refuse to have such inventory made, the personal representative of the deceased partner may have the same made in accordance with the provisions of § 59-76. Should any surviving partner fail to take such an inventory or refuse to allow the personal representative of the deceased partner's estate to do so, such personal representative of the deceased partner's estate may forthwith apply to a court of competent jurisdiction for the appointment of a receiver for such partnership, who shall thereupon proceed to wind up the same and dispose of the assets thereof in accordance with law." The somewhat uncertain refererence to a "court of competent jurisdiction" relieves the Clerk from further duties *227 in this particular phase of the proceeding, since the appointment of a receiver involves certain equities which are beyond the statutory jurisdiction of the Clerk. We are not attempting to chart proceedings in the court below, but it seems to us that the order of September 19, 1949, appointing Totten administrator c. t. a., d. b. n., was within the jurisdiction of the Clerk; and while the two orders following, one of September 19, 1949, and the other of December 1, 1949, requiring the filing of bond and inventory were improperly made, there are some remaining remedies for which the newly appointed administrator might apply, all such remedies not being necessarily limited to the sections of the statute discussed above; and the judgment of the court dismissing the proceedings cannot be sustained. Attention is here called to the provisions of G.S. § 1-276, which provides: "Whenever a civil action or special proceeding begun before the clerk of a superior court is for any ground whatever sent to the superior court before the judge, the judge has jurisdiction; and it is his duty, upon the request of either party, to proceed to hear and determine all matters in controversy in such action, unless it appears to him that justice would be more cheaply and speedily administered by sending the action back to be proceeded in before the clerk, in which case he may do so." We think that the matter is now within the greater jurisdiction of the Superior Court as provided in this statute and such remedies as may be appropriate might be pursued in that court, if conditions warrant. However, since the superior court has only derivative jurisdiction as to the removal or appointment of an administrator d. b. n., that matter could not be interfered with in that court. In re Estate of Fred Styers, 202 N.C. 715, 164 S.E. 123. As to other appropriate matters within the jurisdiction of the Superior Court, they may be so administered, or in the discretion of that court given by the statute, the whole controversy might be remanded by the Superior Court to the Clerk for such action as he is empowered to make. As for this Court, the judgment dismissing the proceeding is reversed and the proceeding remanded to the court below for judgment in accordance with this opinion. Reversed and remanded.

837 So.2d 1147 (2003) David HUFFMAN, Appellant, v. STATE of Florida, Appellee. No. 2D02-5089. District Court of Appeal of Florida, Second District. February 21, 2003. *1148 COVINGTON, Judge. In 1986, David Huffman was convicted of sexual battery with a deadly weapon and armed burglary.[1] He was sentenced to life in prison. Pursuant to Florida Rule of Criminal Procedure 3.853, Huffman filed a motion for postconviction relief requesting DNA testing. He is appealing the trial court's denial of that motion. Because there is a "reasonable probability" that Huffman would have been acquitted had the DNA evidence demonstrated that the contents of the victim's rape kit did not match his DNA, we reverse and remand for further proceedings. See Knighten v. State, 829 So.2d 249, 252 (Fla. 2d DCA 2002). The victim was attacked during the early morning hours of July 21, 1985, while sleeping in her bedroom. When the victim awoke, the assailant was sitting on top of her. The victim testified that she was unable to see the assailant's face because he covered her eyes. The victim was then threatened with a knife and raped. Throughout the assault, the victim's face was covered with a pillowcase. After the assailant left, the victim contacted the police. Rape kit evidence was collected at the hospital. In his motion, Huffman alleged that DNA testing on the contents of the rape kit would exonerate him. He stated that the last known location of the evidence was the Florida Department of Law Enforcement in Tampa or the Sarasota County Police Department. In its response to Huffman's motion, the State failed to indicate whether the rape kit evidence was still available for testing. The trial court never made any findings with regard to this issue. Rule 3.853(c)(5) provides: *1149 (5) The court shall make the following findings when ruling on the motion: (A) Whether it has been shown that physical evidence that may contain DNA still exists. (B) Whether the results of DNA testing of that physical evidence likely would be admissible at trial and whether there exists reliable proof to establish that the evidence containing the tested DNA is authentic and would be admissible at a future hearing. (C) Whether there is reasonable probability that the movant would have been acquitted or would have received a lesser sentence if the DNA evidence had been admitted at trial. The trial court acknowledged that the State failed to allege whether the evidence sought to be tested was still available for testing. However, the trial court did not address this issue because it concluded that "based upon the other evidence that was introduced at the Defendant's trial, the Defendant cannot show that there is a reasonable probability that he would be acquitted if the DNA evidence had been admitted at trial." There was significant circumstantial evidence of Huffman's guilt presented at trial, including: (1) a fingerprint that matched Huffman's fingerprints; (2) phone calls traced to Huffman's house that were made to the victim's house after the attack; and (3) the victim's in-court identification of Huffman's voice as the voice of her assailant. However, identity remained an issue at trial. This court has noted that "the fact that the victim identified [the defendant] as her assailant at trial does not mean that identity was not genuinely disputed at trial for purposes of postconviction DNA testing." Zollman v. State, 820 So.2d 1059, 1062 (Fla. 2d DCA 2002). "Cases addressing this issue have uniformly held that DNA testing will not be permitted if the requested DNA testing would shed no light on the defendant's guilt or innocence." Id. at 1063. Here, as in Zollman, DNA testing of the evidence in this case would show whether Huffman was the perpetrator of the sexual battery. Id. There is a "reasonable probability" that Huffman would have been acquitted had the DNA evidence demonstrated that the contents of the rape kit were inconsistent with his DNA. See Knighten, 829 So.2d at 252. Therefore, we reverse and remand for further proceedings consistent with this opinion and the requirements of rule 3.853. Reversed and remanded. FULMER and DAVIS, JJ., Concur. NOTES [1] In Huffman v. Singletary, 696 So.2d 788 (Fla. 2d DCA 1997), this court prohibited Huffman from challenging his 1986 convictions in this court either by appeal or original proceeding. The motion under review in this proceeding was filed pursuant to Florida Rule of Criminal Procedure 3.853, which creates an avenue to pursue postconviction relief based upon allegations that DNA evidence will exonerate the claimant. This rule was adopted October 18, 2001, after the date that this court restricted Huffman's access to this court to challenge his 1986 convictions. We believe that strict adherence to Huffman under these circumstances is unwarranted, and we except from the holding in Huffman those challenges to Huffman's convictions premised upon rule 3.853. We will continue to abide by Huffman insofar as Huffman may attempt to invoke this court's jurisdiction to attack his 1986 convictions by appeal or original proceeding raised pursuant to other postconviction remedies.

473 Pa. 181 (1977) 373 A.2d 1107 COMMONWEALTH of Pennsylvania v. Richard P. CHENET, Appellant. Supreme Court of Pennsylvania. Argued March 10, 1977. Decided June 3, 1977. *182 John Alan Havey, Aliquippa, for appellant. Anthony J. Berosh, Keith R. McMillen, Asst. Dist. Atty., Beaver, for appellee. Before EAGEN, C.J., and O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ. *183 OPINION OF THE COURT O'BRIEN, Justice. Appellant, Richard P. Chenet, was tried by a judge and jury in Beaver County and convicted of possession of a controlled substance. Appellant filed post-verdict motions for a new trial and in arrest of judgment. The court en banc granted appellant a new trial, but refused to arrest judgment. The Superior Court, by a four-three vote, affirmed the order of the court en banc denying the motion in arrest of judgment.[1]Commonwealth v. Chenet, 237 Pa.Super. 226, 352 A.2d 502 (1975). Appellant filed a petition for allowance of appeal, which this court granted on March 26, 1976. Appellant claims the evidence is insufficient to sustain his conviction and that both the Superior Court and the court en banc erred in refusing his motion in arrest of judgment. We agree and, therefore, reverse and discharge appellant. When reviewing a denial of a motion in arrest of judgment, we must view all of the Commonwealth's evidence introduced at trial in the light most favorable to the Commonwealth with all reasonable inferences therefrom. Commonwealth v. Terenda, 433 Pa. 519, 252 A.2d 635 (1969). The evidence introduced by the Commonwealth is as follows. On May 19, 1973, three Beaver County deputy sheriffs obtained a search warrant for appellant's trailer. Upon arrival at the trailer park, the sheriffs found the trailer locked and had to wait until 10:20 p.m., when appellant's roommate arrived with his girlfriend. A search turned up a few marijuana seeds on the kitchen floor, *184 marijuana cigarette butts in an ashtray in the livingroom and a "baggie" containing marijuana residue in the livingroom. The officers then found approximately 80 grams of marijuana in a milk delivery box attached to the trailer hitch. The search was completed at 11:30 p. m. The deputies remained at the trailer until 1:15 a.m., when appellant arrived. After arresting appellant, the officers sought and were refused permission to search the automobile appellant had been driving. A second warrant was obtained and after two thorough searches of the car, the officers found two marijuana cigarettes in the console between the front seats. The car, however, belonged to appellant's attorney. Appellant had picked up the car to repair it. Appellant was the only individual charged with possession of the contraband. At trial, all of the seized contraband was introduced over appellant's objection. Appellant was convicted of violating 35 P.S. § 780-113, which states, inter alia: "(a) The following acts and the causing thereof within the Commonwealth are hereby prohibited: * * * * * * * * "(16) Knowingly or intentionally possessing a controlled. . . substance . . . ."[2] In Commonwealth v. Fortune, 456 Pa. 365, 368-369, 318 A.2d 327, 328 (1974), we stated: "When the illegal possession of contraband is charged, the evidence must establish that the appellant had a conscious dominion over the contraband. Commonwealth v. Davis, 444 Pa. 11, 280 A.2d 119 (1971). The illegal possession of narcotic drugs is a crime which `by its very nature is unique to the individual. By definition, the possessor is the only person who *185 could commit this crime. Guilt by association. . . is unacceptable.' Commonwealth v. Reece, 437 Pa. 422, 427, 263 A.2d 463, 466 (1970). See also Commonwealth v. Tirpak, 441 Pa. 534, 272 A.2d 476 (1971). The presence of one person in a group of people at the scene `is not of critical import in drug possession cases.' Commonwealth v. Reece [supra, 437 Pa. at 427, 263 A.2d [463] at 466]. See also Commonwealth v. Tirpak [supra]. `[T]he fact of possession loses all persuasiveness if persons other than the accused had equal access . . . to the place in which the property was discovered. . . .' Commonwealth v. Davis, 444 Pa. 11, 16, 280 A.2d 119, 121 (1971), quoting 9 J. Wigmore, Evidence § 2513 (3d ed. 1940). When the crime charged is the illegal possession of narcotic drugs, the presence of a person at the scene, without a consideration of the totality of the circumstances, does not prove the crime." (Emphasis added.) The marijuana found in and around the trailer was in the livingroom, kitchen and outside area immediately adjacent to the trailer. All of these areas were equally accessible to appellant's roommate and his girlfriend. No marijuana was found in appellant's room nor on appellant's person. The marijuana found in the car which belonged to appellant's attorney was the only evidence which could implicate appellant. We believe, however, the Commonwealth has failed to prove beyond a reasonable doubt that appellant knew about and was in possession of two marijuana cigarettes found in a third party's car. We believe that all of the Commonwealth's evidence, reviewed in the light most favorable to the Commonwealth, fails to prove appellant's guilt beyond a reasonable doubt. *186 Order of the Superior Court affirming order of the Court of Common Pleas of Beaver County is reversed and appellant is discharged. POMEROY, J., files a dissenting opinion. POMEROY, Justice, dissenting. Recognizing that this, like other drug possession cases, turns on its own facts and presents a very close question, I nevertheless agree with the Superior Court majority that the evidence here was sufficient to warrant a finding of constructive possession in the defendant Chenet. I therefore respectfully dissent. NOTES [1] We have recently made clear that an interlocutory order denying a motion in arrest of judgment, based on a claim of insufficient evidence, when a new trial has been granted, is appealable. Commonwealth v. Liddick, 471 Pa. 523, 370 A.2d 729, n. 2 (1977). [2] Marijuana is defined as a controlled substance in 35 P.S. § 780-104(1)(iv).

228 Cal.App.3d 1203 (1991) 279 Cal. Rptr. 643 THE PEOPLE, Plaintiff and Respondent, v. ROBERT JAMES KEE, Defendant and Appellant. Docket No. C006064. Court of Appeals of California, Third District. March 26, 1991. *1205 COUNSEL Fern M. Laethem, State Public Defender, under appointment by the Court of Appeal, Bertram C. White, Ellen J. Eggers, Jolie S. Lipsig, and Ronald F. Turner, Deputy State Public Defenders, for Defendant and Appellant. John K. Van de Kamp, Attorney General, Richard B. Iglehart, Chief Assistant Attorney General, Arnold O. Overoye, Assistant Attorney General, Michael Weinberger and Carlos A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent. [Opinion certified for partial publication.[*]] OPINION SIMS, Acting P.J. Defendant was convicted in different cases as follows: In case number 79827, defendant pled guilty to one count of possession of heroin (Health & Saf. Code, § 11350) committed on March 30, 1987. In case numbers 83725 and 85378, consolidated for trial, defendant was found guilty of two counts of possession of a concealable firearm by an ex-felon (Pen. Code,[1] § 12021) committed in September 1987 and February 1988. In case number 86019, defendant was convicted of one count of burglary (§ 459) committed on August 12, 1988. In the case arising out of his convictions for possession of a firearm, defendant contends the trial court abused its discretion in denying his request for a two-day continuance during trial. In an unpublished portion of *1206 the opinion, we reject this contention. Defendant also argues that when the trial court ultimately sentenced him, the court erroneously applied on-bail enhancements (§ 12022.1). For reasons that follow, we will affirm the judgment. I. DENIAL OF CONTINUANCE[*] .... .... .... .... .... . II. SENTENCING Facts and Procedure On March 30, 1987, defendant committed the offense of felony possession of heroin. (Health & Saf. Code, § 11350.) On September 7, 1987, while released from custody for the heroin offense, he committed the offense of possession of a firearm by a ex-felon. (§ 12021.) On February 16, 1988, while released from custody for the heroin offense and the firearm offense, defendant committed another offense of possession of a firearm by an ex-felon. (§ 12021.) On February 24, 1988, pursuant to a guilty plea to the heroin offense, defendant was sentenced to five months in county jail and placed on probation for five years. On August 12, 1988, while released from custody for the two firearm offenses, defendant committed burglary. (§ 459.) The two firearm offenses were consolidated for trial; the jury returned guilty verdicts in November 1988. Defendant was found guilty by jury of first degree burglary in December 1988. Defendant was ultimately sentenced as follows: The trial court selected the upper term of six years on the burglary as the base term. The court then recomputed the sentences on the two firearm offenses as subordinate consecutive terms of eight months each. The court *1207 added three 2-year on-bail enhancements under section 12022.1.[3] The court added four 5-year enhancements for prior serious felony convictions. (§ 667, subd. (a).) Defendant also received a concurrent eight-month sentence for violation of probation stemming from the heroin conviction. Thus, defendant was sentenced to a total of 33 years and 4 months in state prison. Discussion A. Imposition of Both Consecutive Sentence and Two-year Enhancement Does Not Violate Section 12022.1 (1) Defendant contends the trial court erred in imposing the two-year enhancements (§ 12022.1, subd. (b); fn. 3, ante), because the two-year enhancement cannot be imposed where the defendant is convicted of both the primary and secondary offense and is sentenced to state prison for each offense. He argues section 12022.1 itself compels this result, because subdivision (e) — the two-prison-sentence situation — contains no language imposing the two-year enhancement, whereas subdivision (f) — where a defendant receives probation for the primary offense — does contain language specifically imposing the two-year enhancement. (See fn. 3, ante.) Defendant *1208 also points out that, prior to a 1985 amendment, the statute specifically imposed the two-year enhancement in the two-sentence situation. (Stats. 1982, ch. 1551, § 2, p. 6050.) He thus concludes the amendment deleting specific reference to the two-year enhancement in the two-sentence situation (Stats. 1985, ch. 533, § 1, p. 1906) reflects a legislative intent not to impose the enhancement in that situation. These arguments were rejected in People v. Baries (1989) 209 Cal. App.3d 313 [256 Cal. Rptr. 920]. We agree with Baries's analysis and therefore reject defendant's contentions. B. Imposition of Both Consecutive Sentence and Two-year Enhancement Does Not Violate Section 654 (2) Defendant contends imposition of a consecutive sentence (§ 12022.1, subd. (e)) and a two-year enhancement (§ 12022.1, subd. (b)) constitutes impermissible double punishment for the same act "made punishable in different ways by different provisions" of the Penal Code within the meaning of section 654.[4] People v. Warinner (1988) 200 Cal. App.3d 1352 [247 Cal. Rptr. 197] held section 654 did not apply to section 12022.1 enhancements, on the ground that section 654 is "inapplicable to enhancements because enhancements do not define an offense." (P. 1355.) The courts of appeal are divided on the question whether section 654 applies to enhancements. (See People v. Rodriguez (1988) 206 Cal. App.3d 517, 519 [253 Cal. Rptr. 633], and authorities there cited [holding § 654 inapplicable to enhancements]; compare People v. Dobson (1988) 205 Cal. App.3d 496, 501 [252 Cal. Rptr. 423] and authorities there cited [holding § 654 applicable to enhancements].) We do not have to take sides in this dispute because, even assuming for the sake of argument section 654 may be properly applied to enhancements in some circumstances, it does not apply in the circumstances advanced by defendant. In essence, defendant says section 654 is violated because the Legislature has seen fit to punish a single statutory violation (commission of a felony while on bail) with two different punishments (a two-year prison term and a mandatory consecutive sentence) described in two different subdivisions of the same statute. (Fn. 3, ante.) However, section 654 does not apply where the Legislature has adopted multiple statutory provisions punishing a single statutory violation in different ways. Rather, section 654 applies where the defendant's act violates more than one statutory provision *1209 (and therefore usually constitutes the commission of more than one crime), and defendant would be punished for each violation in the absence of section 654. This view of section 654 emerges from the way our Supreme Court has characterized and applied section 654. Thus, in People v. Clapp (1944) 24 Cal.2d 835 [151 P.2d 237], the court concluded section 654 was enacted to apply where "the same act may violate more than one statute, ..." (P. 842.) In People v. Knowles (1950) 35 Cal.2d 175 [217 P.2d 1], the court remarked that section 654 applies where "two offenses [are] committed by the same act...." (P. 186.) Knowles continued, "If a course of criminal conduct causes the commission of more than one offense, each of which can be committed without committing any other, the applicability of section 654 will depend upon whether a separate and distinct act can be established as the basis of each conviction, or whether a single act has been so committed that more than one statute has been violated." (Id. at p. 187, italics added; accord Neal v. State of California (1960) 55 Cal.2d 11, 19 [9 Cal. Rptr. 607, 357 P.2d 839].) Similarly, in People v. Beamon (1973) 8 Cal.3d 625, 636 [105 Cal. Rptr. 681, 504 P.2d 905], the court said section 654 "prohibits the imposition of punishment for more than one violation arising out of an `act or omission' which is made punishable in different ways by different statutory provisions." (Italics added, fn. omitted.) Again, in People v. Perez (1979) 23 Cal.3d 545, 550-551 [153 Cal. Rptr. 40, 591 P.2d 63], the court said, "The purpose of this legislative protection against punishment for more than one violation arising out of an `act or omission' is to insure that a defendant's punishment will be commensurate with his culpability." (People v. Perez, supra, 23 Cal.3d at pp. 550-551, italics added.) In line with these views, Witkin and Epstein have written that the purpose of section 654 "is to prevent multiple punishment for a single act or omission, even though the act or omission violates more than one statute, and thus constitutes more than one crime." (3 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) Punishment for Crime, § 1382, p. 1625, original italics.) We have been cited no authority for the view underlying defendant's argument, i.e., that section 654 prohibits the imposition of different, cumulative punishments for the same proscribed act where the Legislature has set out those punishments in different statutory provisions. Moreover, we have an obligation to give section 654 a reasonable construction in accord with the intent of the Legislature. (People v. Pieters (1991) 52 Cal.3d 894, 898-899 [276 Cal. Rptr. 918, 802 P.2d 420].) We can think of no reason why the Legislature would require itself to set out in a single statutory provision all the various punishments for a wrongful act. Carried to its logical conclusion defendant's view would effectively nullify statutory provisions that impose forms of punishment in addition to basic periods of incarceration. Common *1210 examples are the various enhancement statutes themselves and the restitution fine. (Gov. Code, § 13967.) Since defendant's profferred interpretation of section 654 is patently unreasonable we reject it. (See People v. Pieters, supra, 52 Cal.3d at p. 903.) Here, the sole statutory violation committed by defendant was his commission of a felony while released on bail. In subdivisions (b) and (e) of section 12022.1, the Legislature has ordained that defendant's statutory violation should be punished both by imposition of a two-year enhancement and by imposition of a consecutive sentence. Section 654 does not preclude imposition of these punishments. C. Defendant's Sentence Does Not Violate the Double-base-term Limitation (3) Defendant contends his sentence violates the double-the-base-term (DBT) limitation of section 1170.1, subdivision (g).[5] As noted, defendant was sentenced to a base term of six years on the burglary, two subordinate consecutive eight-month terms on the firearm offenses pursuant to section 12022.1, three 2-year on-bail enhancements under section 12022.1, and four 5-year enhancements for prior serious felony convictions under section 667.[6] Defendant argues: "The double-the-base term limit of section 1170.1, subdivision (g) requires that appellant be sentenced to a term no greater than twice the six-year base term, or 12 years, plus any enhancements that fall within the exceptions enumerated in the section." (Fn. omitted.) He points out his section 12022.1 enhancements, including both the mandatory consecutive subordinate terms and the two-year enhancements, totaled seven years and four months. Because section 12022.1 enhancements are *1211 not specifically excluded from the DBT limitation by statute, defendant seeks a reduction of one year and four months, so that his section 12022.1 enhancements do not exceed his base term. Defendant's argument is based on the mistaken premise that section 1170.1 dissects a sentence into component parts, with a separate inquiry as to whether each component may exceed the DBT limitation. This construction of section 1170.1 was rejected in People v. Magill (1986) 41 Cal.3d 777 [224 Cal. Rptr. 702, 715 P.2d 662], which held that "the presence of any of the specified enhancements [in subdivision (g)] makes the double-base term limitation entirely inapplicable. [Citation.]" (P. 780.) Here, defendant received four serious felony enhancements under section 667. Section 667 is an enhancement expressly enumerated in subdivision (g) of section 1170.1. (See fn. 5, ante.) Consequently, the DBT limitation was wholly inapplicable and defendant was properly sentenced. (Magill, supra, at pp. 780-781.) DISPOSITION The judgment is affirmed. Marler, J., and Scotland, J., concurred. Appellant's petition for review by the Supreme Court was denied June 6, 1991. NOTES [*] All portions of this opinion shall be published except part I, DENIAL OF CONTINUANCE. [1] Undesignated statutory references are to the Penal Code. [*] See footnote, ante, page 1203. [3] Section 12022.1 provides in part: "(a) For the purposes of this section only: "(1) `Primary offense' means a felony offense for which a person has been released from custody on bail or on his or her own recognizance prior to the judgment becoming final, including the disposition of any appeal, or for which release on bail or his or her own recognizance has been revoked. "(2) `Secondary offense' means a felony offense alleged to have been committed while the person is released from custody for a primary offense. "(b) Any person arrested for a secondary offense which was alleged to have been committed while that person was released from custody on a primary offense shall be subject to a penalty enhancement of an additional two years in state prison which shall be served consecutive to any other term imposed by the court. ".... .... .... .... .... . . "(d) Whenever there is a conviction for the secondary offense and the enhancement is proved, and the person is sentenced on the secondary offense prior to the conviction of the primary offense, the imposition of the enhancement shall be stayed pending imposition of the sentence for the primary offense. The stay shall be lifted by the court hearing the primary offense at the time of sentencing for that offense and shall be recorded in the abstract of judgment. If the person is acquitted of the primary offense the stay shall be permanent. "(e) If the person is convicted of a felony for the primary offense, is sentenced to state prison for the primary offense, and is convicted of a felony for the secondary offense, any state prison sentence for the secondary offense shall be consecutive to the primary sentence. "(f) If the person is convicted of a felony for the primary offense, is granted probation for the primary offense, and is convicted of a felony for the secondary offense, any state prison sentence for the secondary offense shall be enhanced as provided in subdivision (b). "(g) If the primary offense conviction is reversed on appeal, the enhancement shall be suspended pending retrial of that felony. Upon retrial and reconviction, the enhancement shall be reimposed. If the person is no longer in custody for the secondary offense upon reconviction of the primary offense, the court may, in its discretion, reimpose the enhancement and order him or her recommitted to custody." [4] Section 654 provides in part: "An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one;...." [5] Section 1170.1, subdivision (g) provides: "The term of imprisonment shall not exceed twice the number of years imposed by the trial court as the base term pursuant to subdivision (b) of Section 1170 unless the defendant stands convicted of a `violent felony' as defined in subdivision (c) of Section 667.5, or a consecutive sentence is being imposed pursuant to subdivision (b) or (c) of this section, or an enhancement is imposed pursuant to Section 667, 667.5, 667.8, 667.85, 12022, 12022.2, 12022.4, 12022.5, 12022.55, 12022.6, 12022.7, 12022.75, or 12022.9, or an enhancement is being imposed pursuant to Section 11370.2, 11370.4, or 11379.8 of the Health and Safety Code, or the defendant stands convicted of felony escape from an institution in which he or she is lawfully confined." [6] Section 667, subdivision (a), provides in part: "In compliance with subdivision (b) of Section 1385, any person convicted of a serious felony who previously has been convicted of a serious felony in this state ... shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively."

83 F.2d 406 (1936) In re PARAMOUNT PUBLIX CORPORATION. KUHN, LOEB & CO. v. PARAMOUNT PUBLIX CORPORATION et al. No. 334. Circuit Court of Appeals, Second Circuit. May 4, 1936. Cravath, De Gersdorff, Swaine & Wood, of New York City (Robert T. Swaine and Wm. D. Whitney, both of New York City, of counsel), for appellants. Simpson, Thacher & Bartlett, of New York City (Thomas D. Thacher, Edwin L. Weisl, and Richard Jones, III, all of New York City, of counsel), for appellee Paramount Pictures, Inc. Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges. MANTON, Circuit Judge. The order appealed from denied appellant's petition for compensation and expenses incurred in assisting in the reorganization of the debtor under section 77B of the Bankruptcy Act (11 U.S.C.A. § 207). Paramount Publix Corporation was a large holding company with interests in over five hundred other corporations engaged in some phase of the motion picture industry. Its consolidated balance sheet a year before its difficulties showed assets of about $300,000,000. In January of 1933 it was forced into equity receivership. On April 14, 1933, trustees in bankruptcy replaced the equity receivers. On June 7, 1934, section 77B of the Bankruptcy Act became effective, and on the next day a petition was filed by creditors for a reorganization of the debtor under that section. *407 A plan was submitted by the debtor December 3, 1934, and later approved, and as of July 1, 1935, the property was turned over to the debtor, then known as Paramount Pictures, Inc. Kuhn, Loeb & Co. has marketed almost a hundred millions in Paramount's securities, and, as the house of issue, it was instrumental in the formation of protective committees for these issues. In 1933 it began the preparation of a comprehensive detailed report of the company's finances to supply the basic data necessary for any reorganization. Some of the debtor's securities had been bought by Kuhn, Loeb & Co. but these were sold out when it was requested to prepare a plan of reorganization by the committees representing the debenture holders and the bank creditors in March and April of 1934. Letters setting forth the arrangements between these parties were exchanged at this time, and it was agreed that, if the plan prepared by appellants was not acceptable, the committees would reimburse them for their expenses and disbursements up to $75,000. It was the understanding of all the parties that, if the plan were adopted, the estate would bear its cost. No formal designation of appellants as agents was made at this time, which, it is to be noted, was before the enactment of section 77B. Preliminary drafts of the financial report Kuhn, Loeb & Co. was preparing were transmitted to the committees for the debenture holders, the bank creditors, and the stockholders in June and July of 1934. With this as a basis, they commenced and continued the preparation of a plan. Numerous conferences were held with the different representative groups, but the principal responsibility for the construction and drafting of the plan fell upon appellants and their counsel, who drew 30 separate progressive printed proofs. In November of 1934, Kuhn, Loeb & Co. withdrew from the reorganization as suits against its members were contemplated. The plan was substantially complete at that time. The points of difference remaining were noted and posed for settlement. On December 3, 1934, the stockholders of the debtor adopted this Kuhn Loeb plan, and it was submitted for the court's approval. Although it was somewhat modified, it is this plan which the court finally approved. Appellants have paid bills of $14,287.29 for the successive printings of the plan and the financial report they prepared. They have been denied reimbursement for this. We think that in the performance of this service the appellants were agents for the principal creditor committees and are entitled to reasonable compensation for the work and for their disbursements by virtue of section 77B (c) (9), 11 U.S.C.A. § 207 (c) (9). This section provides that the judge may allow "reasonable compensation for the services rendered and reimbursement for the actual and necessary expenses incurred in connection with the proceeding and the plan by officers, parties in interest, depositaries, reorganization managers and committees or other representatives of creditors or stockholders, and the attorneys or agents of any of the foregoing and of the debtor." After the passage of this act, the debenture bond committee and the bank committee had continued the delegation to appellant of the task of preparing, as expeditiously as possible, a plan of reorganization of the Paramount Publix Corporation to be submitted to them for consideration. Both committees further undertook in writing to request the trustees of the debtor to make available to appellant as representatives of the creditor groups, all information helpful to the preparation of the plan. The statute expressly provides that the court may compensate agents or attorneys of committees. While the statute broadly empowers the court to grant compensation, it must appear that the work of the agents or attorneys was beneficial to the estate in reorganization. The appellant's work was accepted at their retirement in November, 1934, and it was the plan which the debtor adopted and submitted for approval by the court. The court accepted this plan with some slight modifications, and the estate has had the benefit flowing from it. That the appellants expected compensation, and rightly so, is supported by an application made by the bankers' group and other creditor committees, for an allowance to them. The affidavits in support of their application show the respective committees delegated this important function to the appellant as agent, within section 77B (c) (9), and no affidavit contradicts. The court below found that appellants made factual studies and surveys of the companies' condition and with their attorneys participated actively in the preparation and negotiation of the proposed *408 plan of reorganization; that in the early stages of these negotiations they were in effect reorganization managers, and, "if the situation had remained as it then was, they undoubtedly would have appeared in that capacity in the reorganization proceedings and have qualified for an allowance under the terms of the statute." As a result of the reorganization, the business has been turned back to the reorganized company with the properties intact and well integrated with fixed charges greatly reduced and on a sound financial basis and with its good will unimpaired. The court stated: "This is an achievement for which those who have been in a position of responsibility both in the administration of the estate and the reorganization of the company are entitled to substantial recognition." For this work we think the appellants should be allowed $25,000 and their just disbursements of $14,287.29. Order reversed.

ACCEPTED 03-14-00560-CR 3871260 THIRD COURT OF APPEALS AUSTIN, TEXAS 1/23/2015 1:20:16 AM JEFFREY D. KYLE CLERK CAUSE NO. 03-14-00560-CR IN THE COURT OF APPEALS, THIRD SUPREME JUDICIAL DISTRICT _____________________ FILED IN CHRISTOPHER NEWBERRY 3rd COURT OF APPEALS Appellant AUSTIN, TEXAS VS. 1/23/2015 1:20:16 AM THE STATE OF TEXAS JEFFREY D. KYLE ____________________ Clerk Cause No. C1CR-14-209349, Travis County, Texas, County Court #5, Honorable, Nancy Hohengarten, presiding ____________________ APPELLANT'S FIRST MOTION FOR EXTENSION OF TIME TO FILE BRIEF TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS: COMES NOW, CHRISTOPHER NEWBERRY, appellant, pursuant to U.S.Const., Amends. 5 & 14, Tex.Const., Art. I, Secs. 13 & 19, and T.R.A.P., not limited to Rules 4.1, 10.5, 38.6 and 38.9, and moves the Court to extend the time for filing appellant’s brief SIXTY (60) days to March 16, 2015, and shows: I. PROCEDURAL HISTORY. On or about August 7, 2014, on plea of not guilty, a jury convicted appellant of driving while intoxicated, a class B misdemeanor. The court assessed sentence of 120 days Travis County jail, no fine. Motion for New Trial apparently was timely filed August 28, 2014. Notice of Appeal was filed prematurely on August 28, 2014, and an Amended Notice of Appeal was filed October 14, 2015 (correcting the defendant’s name in the body of the Notice). The reporter's record was filed December 16, 2014. II. NO PRIOR EXTENSIONS. Appellant has received no extensions of time to file his brief. III. TIME OF MOTION. The brief was due January 15, 2015. This motion is filed by mailing within 15 days thereof. IV. REASONS FOR EXTENSION OF TIME. Appellant requests for an extension of time based on the following: 1. Counsel is presently working on the brief in the appeal of Cause No. 03-14-00193, Martin Lopez Montejo v. The State of Texas, presently due on February 4, 2015. 2. Counsel was out of town with family for Christmas from December 21 to 28, 2014. 3. In the last 30 days, counsel represented some 36 clients with some 60 cases (approximately 29/49 appointed and/or jail requiring prompt disposition) and disposed of some 4 defendants and 4 cases. 5. Therefore, asks this Honorable Court to extend the time for filing brief SIXTY (60) days to March 16, 2015, so appellant will be given a full and meaningful appeal and accorded due process and due course of law, his right to appeal and effective assistance of counsel. WHEREFORE, appellant prays this Court grant this motion and extend the time for filing his brief SIXTY (60) days to March 16, 2015. RESPECTFULLY SUBMITTED, /s/ Christopher P. Morgan Christopher P. Morgan State Bar No. 14435325 3009 N. IH 35 Austin, Texas 78722 (512) 472-9717 // FAX: 472-9798 ATTORNEY FOR APPELLANT CERTIFICATE OF SERVICE: I, Christopher P. Morgan, certify a true and correct copy of this Motion was served on the Office of the County Attorney for Travis County, Texas on January 23, 2015, by mail to P.O.Box 1748, Austin, TX 78767 . /s/ Christopher P. Morgan 

United States Court of Appeals For the Eighth Circuit ___________________________ No. 15-1148 ___________________________ Patrick Ryan Bray lllllllllllllllllllll Plaintiff - Appellant v. Bank of America lllllllllllllllllllll Defendant - Appellee ____________ Appeal from United States District Court for the Eastern District of Missouri - St. Louis ____________ Submitted: July 6, 2015 Filed: August 3, 2015 [Unpublished] ____________ Before WOLLMAN, LOKEN, and BENTON, Circuit Judges. ____________ PER CURIAM. Florida financial advisor Patrick Bray appeals the district court’s orders dismissing his claims against Bank of America based on the anti-tying provision of the Bank Holding Company Act (BHCA), 12 U.S.C. § 1972, and state defamation law; denying him leave to amend; and denying his motion for reconsideration. Having jurisdiction under 28 U.S.C. § 1291, and having granted rehearing of this court’s opinion and judgment of June 9, 2015, this court now affirms in part, reverses in part, and remands. The district court determined that Bray’s BHCA claim should be dismissed under either Federal Rule of Civil Procedure 12(b)(1) or 12(b)(6) because Bray lacked Article III and statutory standing. After carefully reviewing the record and the parties’ arguments on appeal, see Plymouth Cnty., Iowa v. Merscorp, Inc., 774 F.3d 1155, 1158-59 (8th Cir. 2014) (appellate court reviews standing determinations and dismissal for failure to state claim de novo), this court reverses the dismissal of the BHCA claim, and remands for the district court to consider in the first instance whether Bray has standing in light of Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1391-92 (2010) (holding injured party who was not direct competitor of defendant may have statutory standing to bring unfair competition claim), see Sygenta Seeds, Inc. v. Bungee North America, Inc., 773 F.3d 58, 64-65 (8th Cir. 2014) (reversing dismissal of Lanham Act claim, and remanding for reconsideration in light Lexmark); Hammer v. Sam’s East, Inc., 754 F.3d 492, 498-99 (8th Cir. 2014) (examining statute that created legal right at issue to determine whether Article III standing existed). This court affirms the district court’s dismissal of Bray’s state-law claims, see Plymouth Cnty., 774 F.3d at 1158-59 (standard of review for dismissals under Fed. R. Civ. P. 12(b)(6)), affirms the district court’s orders in all other respects, see Mountain Home Flight Serv., Inc. v. Baxter Cnty., Ark., 758 F.3d 1038, 1045-46 (8th Cir. 2014) (appellate court reviews denial of leave to amend for abuse of discretion); Miller v. Baker Implement Co., 439 F.3d 407, 414 (8th Cir. 2006) (appellate court reviews denial of motions under Fed. R. Civ. P. 59(e) or 60(b) for abuse of discretion), and denies Bank of America’s pending motion to file a supplemental brief. ______________________________ -2- 

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 08/21/2020 12:07 AM CDT - 579 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF HUTTON Cite as 306 Neb. 579 In re Estate of William Daniel Hutton, deceased. John Hodge, Successor Personal Representative of the Estate of William Daniel Hutton, deceased, appellee, v. Webster County, Nebraska, appellant. ___ N.W.2d ___ Filed July 24, 2020. No. S-19-875. 1. Guardians and Conservators: Judgments: Appeal and Error. Appeals of matters arising under the Nebraska Probate Code, Neb. Rev. Stat. §§ 30-2201 through 30-2902 (Reissue 2016, Cum. Supp. 2018 & Supp. 2019), are reviewed for error on the record. When reviewing a judgment for errors on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. 2. Decedents’ Estates: Attorney Fees. Ordinarily, the fixing of reasonable compensation, fees, and expenses under the statutes governing com- pensation of personal representatives, expenses in estate litigation, and compensation of personal representatives and employees of the estate, is within the sound discretion of the county court. 3. Statutes: Appeal and Error. Statutory interpretation is a question of law, which an appellate court resolves independently of the trial court. 4. Costs. Costs of litigation and expenses incident to litigation may not be recovered unless provided for by statute or a uniform course of procedure. 5. ____. Whether costs and expenses are authorized by statute or by the court’s recognition of a uniform course of procedure presents a question of law. 6. Statutes: Legislature: Intent. In construing a statute, a court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense.  - 580 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF HUTTON Cite as 306 Neb. 579 7. Statutes. It is not within the province of the courts to read a meaning into a statute that is not there or to read anything direct and plain out of a statute. 8. Legislature: Intent. The intent of the Legislature is expressed by omis- sion as well as by inclusion. Appeal from the County Court for Webster County: Michael O. Mead, Judge. Judgment vacated. Sara J. Bockstadter, Webster County Attorney, for appellant. No appearance for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Funke, J. Webster County, Nebraska (County), appeals from an order of the county court requiring the County to pay fees and expenses to a court-appointed successor personal representa- tive. Because the court lacked the authority to order the County to pay the successor personal representative fees, we vacate the order. BACKGROUND William Daniel Hutton died intestate without a surviv- ing spouse in February 2015. The county court granted an application filed by Hutton’s only children, John Hutton and Alexis Elledge, for informal appointment of copersonal repre- sentatives of the estate. In July 2015, counsel for the coper- sonal representatives withdrew from the case. Thereafter, each coper­sonal representative retained independent counsel. In January 2016, John filed a “Motion to Distribute Estate Assets,” requesting that the court order Elledge to pay him half the value of E.W. Seals, a business owned and operated by William at the time of his death. John alleged that the busi- ness had a value of $250,000. The court ordered the business to be liquidated or sold with the proceeds to be paid to the  - 581 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF HUTTON Cite as 306 Neb. 579 estate. The copersonal representatives filed an inventory that included valuations for all estate assets except E.W. Seals. In January 2017, in response to an order to show cause, Elledge filed a motion seeking the appointment of a new personal representative who was not a family relative. The motion alleged that there was a breakdown in communication between the copersonal representatives due to disagreement over the valuation and distribution of the E.W. Seals assets. At the show cause hearing, the copersonal representatives informed the court it was unlikely they would be able to complete the administration of the estate. On February 14, the court discharged John and Elledge as copersonal representa- tives and appointed attorney John Hodge as successor per- sonal representative. In October 2018, Hodge filed an amended inventory which valued the estate at approximately $420,000. Hodge filed a statement of distributions of the prior copersonal representa- tives showing that John had taken $210,455.62 and Elledge had taken $147,908.43. Although the assets of the estate were to be divided equally between the surviving children, John had received $62,547.19 more than Elledge. The estate owed $60,346.23 in federal income taxes and $8,429.29 in state income taxes. The court ordered John and Elledge to return liquid funds to Hodge for payment of estate taxes, and then it granted Elledge’s motion for reconsideration and ordered John to return the value of an investment account and the value of a 2013 Toyota pickup. Hodge filed a “Petition for Order to Pay Debts of the Estate and Equalization of Assets Among Beneficiaries” and a “Petition for Determination of Inheritance Tax and Reimbursement of Prior Paid Tentative Inheritance Tax.” Around this same time, Hodge filed an application for payment of his fees and expenses. In December 2018, following a hear- ing, the court ordered John to immediately return $62,547.19, of which John returned $30,000. The court ordered Hodge to pay court costs and outstanding federal and state taxes. The  - 582 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF HUTTON Cite as 306 Neb. 579 court continued to a later date the final settlement and Hodge’s application for fees and expenses. Hodge used the remaining funds in the estate’s account to pay $478 in court costs and $42,545.89 in federal taxes. Hodge completed administration of the estate and renewed his application for fees and expenses. Per order of the court, Hodge served the Webster County Attorney with a notice of hearing for August 2, 2019. At the hearing, the court informed the County that the estate was insolvent and that Hodge would submit his request for payment to the County. The County objected to being responsible for Hodge’s fees and expenses, and it stated that Hodge’s application had not requested that the County pay his fees and expenses. The County argued that the estate at one point had substantial assets and that the heirs of the estate should be held responsible for Hodge’s fees. Hodge admitted he knew of no statutory authority to require the County to pay his fees. In its order dated August 13, 2019, the court found that Hodge had served as a court-appointed successor personal representative for 21⁄2 years and that his fees were fair and reasonable given the amount of work involved. The court found that the estate was insolvent and that the amount owed by the heirs to the Internal Revenue Service and the Nebraska Department of Revenue was likely uncollectible. The court found that “the County . . . shall pay the amount of $6,455.63 to . . . Hodge.” The County appealed and is the only party to participate in this matter. We moved this case to our docket on our own motion. ASSIGNMENTS OF ERROR The County assigns, restated, that the court lacked ­authority to order the County to pay the fees and expenses of the court- appointed successor personal representative. The County fur- ther contends that had the distributions taken by the original  - 583 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF HUTTON Cite as 306 Neb. 579 copersonal representatives not occurred, there would have been sufficient assets for the estate to pay Hodge. STANDARD OF REVIEW [1] Appeals of matters arising under the Nebraska Probate Code, Neb. Rev. Stat. §§ 30-2201 through 30-2902 (Reissue 2016, Cum. Supp. 2018 & Supp. 2019), are reviewed for error on the record. 1 When reviewing a judgment for errors on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. 2 [2] Ordinarily, the fixing of reasonable compensation, fees, and expenses, pursuant to § 30-2480, governing compensation of personal representatives; § 30-2481, governing expenses in estate litigation; and § 30-2482, governing compensation of personal representatives and employees of the estate, is within the sound discretion of the county court. 3 [3] Statutory interpretation is a question of law, which an appellate court resolves independently of the trial court. 4 ANALYSIS [4,5] The issue presented to us is whether the county court was authorized to order the County to pay the reasonable fees and expenses of the court-appointed successor personal representative. We have long held that costs of litigation and expenses incident to litigation may not be recovered unless provided for by statute or a uniform course of procedure. 5 Whether costs and expenses are authorized by statute or by the 1 In re Guardianship of Eliza W., 304 Neb. 995, 938 N.W.2d 307 (2020). 2 Id. 3 In re Estate of Graham, 301 Neb. 594, 919 N.W.2d 714 (2018). 4 In re Guardianship of Eliza W., supra note 1. 5 City of Falls City v. Nebraska Mun. Power Pool, 281 Neb. 230, 795 N.W.2d 256 (2011). See Nat. Bank of Commerce Trust & Savings Assn. v. Rhodes, 207 Neb. 44, 295 N.W.2d 711 (1980).  - 584 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF HUTTON Cite as 306 Neb. 579 court’s recognition of a uniform course of procedure presents a question of law. 6 [6,7] In construing a statute, a court must determine and give effect to the purpose and intent of the Legislature as ascer- tained from the entire language of the statute considered in its plain, ordinary, and popular sense. 7 It is not within the province of the courts to read a meaning into a statute that is not there or to read anything direct and plain out of a statute. 8 In In re Guardianship of Suezanne P., 9 the Nebraska Court of Appeals addressed whether, in a guardianship proceeding, a county may be ordered to pay the fees of an attorney appointed to represent the minor child’s mother. Although the county was not involved in the case, the trial court ordered the county to pay the attorney fees. When the county appealed, the appellate court found that the attorney pled no authority for requiring the county to pay his fees and that no authority was cited in the trial court’s order. In vacating the order, the Court of Appeals found that although various other statutes authorize a court to order a county to pay attorney fees, there was no authority for the trial court to order the county to pay the fees of the parent’s court-appointed attorney in a civil guardianship case in which the county was no way involved. 10 [8] In In re Adoption of Kailynn D., 11 this court consid- ered whether a county could be required to pay the fee of a guardian ad litem in a private adoption. Our interpretation of the statutes at issue focused on the rule that the intent of 6 See, D.I. v. Gibson, 295 Neb. 903, 890 N.W.2d 506 (2017); In re Guardianship of Brydon P., 286 Neb. 661, 838 N.W.2d 262 (2013). 7 Anderson v. A & R Ag Spraying & Trucking, ante p. 484, ___ N.W.2d ___ (2020). 8 State v. Swindle, 300 Neb. 734, 915 N.W.2d 795 (2018). 9 In re Guardianship of Suezanne P., 6 Neb. App. 785, 578 N.W.2d 64 (1998). 10 Id. 11 In re Adoption of Kailynn D., 273 Neb. 849, 733 N.W.2d 856 (2007).  - 585 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF HUTTON Cite as 306 Neb. 579 the Legislature is expressed by omission as well as by inclu- sion. 12 The statutory provision at issue in that case, Neb. Rev. Stat. § 43-104.18 (Reissue 2016), addressed the court’s author- ity to appoint a guardian ad litem to represent the interests of the biological father. We reasoned that because the Legislature expressly obligated a county to pay guardian ad litem or attor- ney fees in other statutes, such as Neb. Rev. Stat. § 43-292.01 (Reissue 2016), but not in the statute at issue, the Legislature did not intend to grant a court the authority to order a county to pay the fees of a guardian ad litem appointed for a biological father in a private adoption case. 13 We cited with approval In re Guardianship of Suezanne P., noting that in both cases the county was not involved in the case until the court ordered it to pay fees. 14 In this matter, we must examine the statutory provisions under the Nebraska Probate Code that address personal rep- resentatives. A personal representative “includes executor, administrator, successor personal representative, special admin- istrator, and persons who perform substantially the same func- tion under the law governing their status.” 15 A successor per- sonal representative is “a personal representative, other than a special administrator, who is appointed to succeed a previously appointed personal representative.” 16 A personal representative is entitled to reasonable compensation. 17 We have held that the fixing of reasonable compensation is within the sound discre- tion of the county court. 18 12 Id. 13 See id. 14 See id. See, also, In re Guardianship of Suezanne P., supra note 9. 15 § 30-2209(33). 16 § 30-2209(45). 17 § 30-2480. 18 See, In re Estate of Graham, supra note 3; In re Estate of Odineal, 220 Neb. 168, 368 N.W.2d 800 (1985).  - 586 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF HUTTON Cite as 306 Neb. 579 This court has not been presented with any authority or recognized course of procedure to support an order requiring a county to pay a personal representative’s fees. Our review of the relevant statutes indicates that a personal representative’s fees are paid by the estate. Under § 30-2481, a personal rep- resentative who defends or prosecutes any proceeding in good faith is entitled to receive necessary expenses “from the estate.” Under § 30-2482(1), the court may review the reasonableness of the compensation determined by the personal representative for his or her own services and may order the return of exces- sive “compensation from an estate.” Section 30-2487 states that “[c]osts and expenses of administration” are paid from “assets of the estate.” Under § 30-2473, a personal representa- tive is liable to interested persons for damage or loss resulting from breach of his or her fiduciary duty. We digress to note that the county court discharged the coper­sonal representatives instead of merely removing them or terminating their authority. Typically, courts remove or terminate the status of a personal representative rather than discharge the personal representative so that the terminated personal representative remains responsible for any misdeeds he or she may have committed while acting as personal representative. 19 In returning to the case at bar, the Legislature has expressly designated the estate as being responsible for personal rep- resentative compensation. Additionally, the Legislature has not expressly stated that a county is responsible for personal representative compensation. Any rules governing whether a county should be ordered to pay for a personal repre­ sentative’s costs and expenses should be established by the Legislature. 20 The County notes in its brief that there are a number of statutory provisions which grant the court authority to require 19 See In re Estate of Graham, supra note 3. 20 See White v. White, 296 Neb. 772, 896 N.W.2d 600 (2017).  - 587 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF HUTTON Cite as 306 Neb. 579 counties to pay fees in other circumstances. 21 Regarding such provisions under the Nebraska Probate Code, § 30-2620.01 permits a court to order a county to pay the reasonable fees and costs of an attorney, a guardian ad litem, a physician, and a visitor appointed by the court for an incapacitated person, if the incapacitated person does not possess an estate. Section 30-2643 permits a court to order a county to pay the reasonable fees and costs of an attorney, a guardian ad litem, a physician, a conservator, a special conservator, and a visitor appointed by the court for a protected person, if the protected person does not possess an estate. The fact that the Legislature did not expressly obligate counties to pay personal representative fees and expenses reflects a legislative intent that a county cannot be ordered to pay those fees. Moreover, this is a probate matter in which the County was in no way involved. Accordingly, pur- suant to In re Guardianship of Suezanne P. 22 and In re Adoption of Kailynn D., 23 we conclude that the court erred in ordering the County to pay Hodge’s fees. Additionally, the County contends that the court should have ordered the estate to pay for Hodge’s services before the estate became insolvent. Prior to ordering the County to pay Hodge’s reasonable compensation, the court ordered Hodge to pay the estate’s court costs and outstanding federal and state income taxes. Hodge paid court costs and a large portion, but not all, of the federal taxes owed. The estate had insufficient assets to satisfy the remaining federal and state taxes or com- pensate Hodge. The County contends that if the estate cannot fully pay all of its claims, the court should have given priority to Hodge’s compensation under § 30-2487(a)(1). However, 21 See, Neb. Rev. Stat. § 29-3905 (Reissue 2016) (payment for attorneys appointed to represent indigent felony defendants); Neb. Rev. Stat. § 42-358 (Reissue 2016) (payment for attorneys appointed for minor child in domestic relations cases if responsible party is indigent). 22 In re Guardianship of Suezanne P., supra note 9. 23 In re Adoption of Kailynn D., supra note 11.  - 588 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF HUTTON Cite as 306 Neb. 579 we need not address the County’s argument regarding the priority of payments to be made under § 30-2487(a), because either way, the court lacked the statutory authority to order the County to pay the successor personal representative’s fees. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it. 24 CONCLUSION Because the county court lacked the authority to order the County to pay the successor personal representative’s fees and expenses, the order granting fees and expenses is vacated. Judgment vacated. 24 Saylor v. State, 304 Neb. 779, 936 N.W.2d 924 (2020). Cassel, J., concurring. This court’s opinion, which I join unreservedly, correctly resolves the narrow issue presented in this appeal. But the court’s opinion gives a glimpse of an estate that went horribly wrong. One lesson that deserves emphasis to the bench and bar is the distinction between the termination of an appointment of a personal representative and the discharge of a personal repre- sentative. They are not synonymous. And unwitting use of the wrong terminology can have disastrous consequences. According to our transcript, on January 31, 2017, one of the heirs sought the appointment of a new personal represent­ ative to replace the original copersonal representatives. The motion did not request that the original copersonal represent­ atives be discharged. Only 3 days later, at a hearing where the attorney for the original copersonal representatives apparently informed the court that they likely would be unable to complete admin- istration, the county court not only appointed a new per- sonal representative, it “discharged” the original copersonal representatives. Because we have no record of the hearing  - 589 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF HUTTON Cite as 306 Neb. 579 on that date, our record contains only the court’s written order. The Nebraska Probate Code, 1 which is based on the Uniform Probate Code, 2 clearly distinguishes a “termination of appoint- ment” from a “discharge.” 3 Section 30‑2451 states: Termination of appointment of a personal representa- tive occurs as indicated in sections 30‑2452 to 30‑2455. Termination ends the right and power pertaining to the office of personal representative as conferred by this code or any will . . . . Termination does not discharge a personal representative from liability for transactions or omissions occurring before termination, or relieve him of the duty to preserve assets subject to his control, to account therefor and to deliver the assets. Termination does not affect the jurisdiction of the court over the per- sonal representative, but terminates his authority to repre- sent the estate in any pending or future proceeding. (Emphasis supplied.) One of the methods for termination is specified in § 30‑2454, which authorizes the county court to remove a personal representative and sets forth the procedure to do so. The comment to the equivalent provision of the uni- form act explains, “‘Termination’, as defined by this and suc- ceeding provisions, provides definiteness respecting when the powers of a personal representative (who may or may not be discharged by court order) terminate. . . . It is important to note that ‘termination’ is not ‘discharge’.” 4 Under § 30‑24,115(a), a court “may enter an order or orders, on appropriate conditions, . . . discharging the personal 1 Neb. Rev. Stat. §§ 30‑401 to 30‑406, 30‑701 to 30‑713, 30‑2201 to 30‑2902, 30‑3901 to 30‑3923, 30‑4001 to 30‑4045, 30‑4101 to 30‑4118, and 30‑4201 to 30‑4210 (Reissue 2016, Cum. Supp. 2018 & Supp. 2019). 2 Unif. Probate Code, § 1‑101 et seq., 8 U.L.A. 1 et seq. (2013 & Supp. 2019). 3 § 30‑2451. 4 Unif. Probate Code § 3‑608, comment, 8 (part II) U.L.A. 138 (2013).  - 590 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF HUTTON Cite as 306 Neb. 579 representative from further claim or demand of any inter- ested person.” I express no opinion regarding the legal effect of the county court’s order of February 9, 2017, which memorialized the hearing of February 3. But I urge that courts be precise in the use of this terminology. 

501 So.2d 901 (1987) John F. HERBERT, Jr. and State Farm Fire and Casualty Company v. CITY OF KENNER. No. 86-CA-471. Court of Appeal of Louisiana, Fifth Circuit. January 12, 1987. *902 Marianne S. Pensa, Blue, Williams & Buckley, Metairie, for third party plaintiffs-appellants. Edward J. Womac, Jr., Berrigan, Danielson, Litchfield, Olsen & Schonekas, New Orleans, for third party defendant-appellee. Before GRISBAUM, DUFRESNE and GOTHARD, JJ. GRISBAUM, Judge. This appeal deals with the liability of landowners whose property is used primarily for recreational purposes. The defendants-third party plaintiffs, John F. Herbert, Jr. and State Farm Fire and Casualty Company, appeal the granting of summary judgment in favor of the third party defendant, the City of Kenner. We set aside, amend, and affirm. We are called upon to determine one principal issue: Whether the trial court erred in (apparently) finding that our statutory law in La.R.S. 9:2795 grants immunity to landowners who have made their land available for certain recreational purposes absent willful or malicious action. FACTS On May 17, 1984, minors Joseph John Raffo, Corey Salathe, and John Herbert III were playing on a mud pile in the Susan Park Playground in Kenner, Louisiana. While the boys were throwing chunks of mud at one another, Joseph Raffo was hit in the eye, causing permanent injury to his sight and head. His father, Joseph G. Raffo, filed suit in the Twenty-Fourth Judicial District Court, alleging the object had been thrown by the Herbert child. Named as defendants were John F. Herbert, Jr. and State Farm Fire and Casualty Company, Herbert's personal liability carrier. Herbert and State Farm answered and filed a third party demand against the City of Kenner as the municipal corporation which owned and was responsible for the maintenance of the playground. Thereafter, the City of Kenner moved for summary judgment, which was granted on April 11, 1986. ANALYSIS Initially, we note the record does not contain any reasons for judgment; accordingly, we are not privy to the legal basis which triggered the trial court's granting the motion for summary judgment on behalf of the City of Kenner. Appreciating this adversity, we look to our statutory law in La.C.C.P. art. 966, which, in pertinent part, states: The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. Under Louisiana's fact-pleading rules, La.C.C.P. arts. 854 and 891, issues of fact naturally become apparent on the face of the pleadings. Starting with the petition and going through the answer to the third party demand, we find mostly general denials in the defendants' answer, as well as in the third party defendant's answer. Obviously, issues of fact exist when factual allegations are denied. A further examination of the record reveals that several depositions have been taken in connection with this litigation; however, none were submitted with the motion. The record contains no supporting depositions, affidavits, and only one set of interrogatories and answers or admissions. The answers to the interrogatories do not shed much light on those facts pleaded and denied in the petitions. Although the memoranda submitted in support of the motion recounts events which took place at the playground, it is not to be considered under La.C.C.P. art. 966 as a document to support a summary *903 judgment. Accordingly, based on the general denials made, we can only conclude that genuine issues of material fact do exist. Therefore, summary judgment is not an available remedy. Although we determine there is a genuine issue as to material fact, we must further decide whether, as a matter of law, the trial court erred in entering summary judgment, apparently finding that La.R.S. 9:2795 granted immunity to the City of Kenner under the facts presented. La.R.S. 9:2795, which limits liability of landowners whose property is used primarily for recreational purposes, states: A. As used in this Section: (1) "Land" means land, roads, water, watercourses, private ways and buildings, structures, and machinery or equipment when attached to the realty. (2) "Owner" means the possessor of a fee interest, a tenant, lessee, occupant or person in control of the premises. (3) "Recreational purposes" includes, but is not limited to, any of the following, or any combination thereof: hunting, fishing, trapping, swimming, boating, camping, picnicking, hiking, horseback riding, bicycle riding, motorized vehicle operation for recreation purposes, nature study, water skiing, ice skating, sledding, snow mobiling, snow skiing, summer and winter sports, and viewing or enjoying historical, archaeological, scenic, or scientific sites. (4) "Charge" means the admission price or fee asked in return for permission to use lands. (5) "Person" means individuals regardless of age. B. Except for willful or malicious failure to warn against a dangerous condition, use, structure, or activity, an owner of land, except an owner of commercial recreational developments or facilities, who permits with or without charge any person to use his land for recreational purposes as herein defined does not thereby: (1) Extend any assurance that the premises are safe for any purposes. Note 2 (2) Constitute such person the legal status of an invitee or licensee to whom a duty of care is owed. (3) Incur liability for any injury to person or property incurred by such person. C. Unless otherwise agreed in writing, the provisions of Subsection B shall be deemed applicable to the duties and liability of an owner of land leased for recreational purposes to the federal government or any state or political subdivision thereof or private persons. D. Nothing in this Section shall be construed to relieve any person using the land of another for recreational purposes from any obligation which he may have in the absence of this Act to exercise care in his use of such land and in his activities thereon, or from the legal consequences of failure to employ such care. Acts 1975, No. 615, §§ 2 to 5. Preliminarily, it is undisputed that the City of Kenner did not act willfully or maliciously and that the playground was not operated on a commercial basis. See McCain v. Commercial Union Ins. Co., 592 F.Supp. 1 (W.D.La.1983). Also, jurisprudence in this state is well-settled that the term "owner" includes governmental entities, such as the City of Kenner. Rodrigue v. Firemen's Fund Ins. Co., 449 So.2d 1042 (La.App. 5th Cir.1984); Pratt v. State of La., 408 So.2d 336 (La.App. 3d Cir.1981), writ denied, 412 So.2d 1098 (La. 1982). This Circuit, in Rodrigue v. Firemen's Fund Ins. Co., supra at 1043, quoting Pratt v. State of La., supra, stated, "`By its terms, the grant of immunity is made to any landowner who has made his land available for certain recreational purposes. The State, for purposes of this statute, stands in the same position as any other private litigant.' (Underlining supplied.)" We specifically note that in Rodrigue, supra at 1043 this Court clearly stated, "While we do not necessarily agree with this statutory interpretation, we cannot overlook it." In Rodrigue, supra, this Court affirmed the granting of the motion *904 for summary judgment, which dealt with an insurance company's contention that the Jefferson Parish Recreational Department, regarding an incident which occurred in a playground in the Parish of Jefferson, was immune from tort liability because of La. R.S. 9:2795. However, the Louisiana Supreme Court recently dealt with the question as to when property falls within the purview of "land" used for "recreational purposes," as defined in the statute. In Keelan v. State Dep't of Culture, Recreation and Tourism, 463 So.2d 1287 (La. 1985), the property in question was a swimming pool located in Fountainbleau State Park. In reversing the granting of a motion for summary judgment, Justice Marcus commented: The use of the language "land and water areas" is suggestive of open and undeveloped expanses of property. Furthermore, the type of recreational activities enumerated in both statutes—hunting, fishing, trapping, camping, nature study, etc.—can normally be accommodated only on large tracts or areas of natural and undeveloped lands located in thinly-populated rural or semi-rural locales.... Thus, we conclude that the legislature intended to confer immunity upon owners of undeveloped, nonresidential rural or semi-rural land areas. The size, naturalness and remoteness or insulation from populated areas all attribute to the categorization of property as rural or semi-rural. . . . . . Examination of the characteristics of the land alone does not end the inquiry into whether the statutes apply to a particular factual situation. The injury-causing condition or instrumentality must also be scrutinized. Again, reference to the types of recreational activities specified in the statutes (hiking, boating, horseback riding, etc.) indicates that the legislature envisioned immunity for landowners who offer their property for recreation that can be pursued in the "true outdoors." When the injury-causing condition or instrumentality is of the type normally encountered in the true outdoors, then the statutes provide immunity. Conversely, when the instrumentality, whether found in an urban or rural locale, is of the type usually found in someone's backyard, then the statutes afford no protection. (footnote omitted). Keelen, supra at 1290. Additionally, in Landry v. Bd. of Levee Comm'r of Orleans Levee Dist., 477 So.2d 672 (La.1985), Justice Calogero quoted the Keelen case and added: In Keelen, with respect to premises we determined that the Legislature by these statutes intended to confer immunity only upon owners of undeveloped, non-residential, rural or semi-rural land areas. The Legislature surely did not intend to cloak with immunity the owner of such property as is involved here, a recreational area within a populated city, adjacent to a much travelled Lakeshore Drive, and within a stone's throw of an exclusive residential area developed in the City of New Orleans many years ago. Surely the Legislature did not contemplate such property when passing statutes in 1964 and 1975 designed "to encourage owners of land to make land and water areas available to the public for recreational purposes." This is so irrespective of whether the Legislature intended the statutes to be applicable generally to the State and its political subdivisions. (emphasis their own). Landry, supra at 675. In light of our jurisprudential mandate, bearing in mind our ability to take judicial notice of the location of Susan Park Playground at 600 29th Street in Kenner, Louisiana, we find that La.R.S. 9:2795's grant of immunity does not apply to this property. Accordingly, we set aside the trial court's granting of the motion for summary judgment. We now turn to decide whether the pleadings of the third-party demand state a cause of action upon which the City of Kenner can be held liable. Our jurisprudence clearly states that the exception of *905 no cause of action, though not specifically pleaded, may be noticed and considered by the court ex proprio motu. La.C.C.P. art. 927; Randall v. Jena Wire and Cable Co., 415 So.2d 564 (La.App. 3d Cir.1982); Starkey v. Starkey, 209 So.2d 593 (La.App. 1st Cir.1967). The peremptory exception of no cause of action raises a question as to whether our law affords any remedy to the plaintiff under the allegations of its petition. In determining whether the plaintiff's petition states a cause of action, we must look only to the face of the petition and attached documents and must accept as true all well-pleaded facts in the petition and attached documents. Fidelity & Casualty Co. of New York v. Bordelon, 428 So.2d 1162 (La.App. 5th Cir.1983). The exception may be sustained only when it is clearly shown that the law affords no remedy to anyone for the particular grievance alleged. Meche v. Arceneaux, 460 So.2d 89 (La.App. 3d Cir.1984). If the allegations set forth a cause of action as to any part of the demand, the exception must be overruled. Cupp v. Federated Rural Elec. Ins. Co., 459 So.2d 1337 (La.App. 3d Cir. 1984). The pleadings of the third party demand against the City of Kenner are as follows: 2. Third party plaintiffs had been made defendants in a suit by Joseph F. Herbert, Jr., individual[ly] and in his capacity as administrator of the [] estate of the minor child, John F. Herbert, III, it being alleged that Joseph John Raffo, son of Joseph G. Raffo, threw a missle [sic] which struck John F. Herbert, III, in the head and right eye causing the injuries complained of in the petition.[1] 3. The City of Kenner was owner and responsible for maintenance of the playground where the alleged incident occurred. On that playground, a large clump of mud existed, which clump of mud formed the basis for the alleged incident. 4. The negligence and/or fault of the City of Kenner consists of the following non-exclusive particulars: (a) Allowing an attractive nuisance to exist without the proper safeguards; (b) Failing to adquately [sic] police and patrol its playgrounds; (c) Any and all other acts of negligence and/or fault as may be proven at a trial of this matter. In essence, the only action on the part of Kenner is that it allowed a large mud pile to exist on the playground. While the courts of Louisiana have recognized and accepted the doctrine of attractive nuisance,[2] even after the enactment of La.R.S. 9:2791 and 2795, Saxton v. Plum Orchards, 215 La. 378, 40 So.2d 791 (1949) and Smith v. Crown-Zellerbach, Inc., 638 F.2d 883 (5th Cir.1981), the jurisprudence is clear that unless a "hidden trap" or "inherently dangerous" instrumentality peculiarly attractive to children exists, there can be no application of the doctrine. Johnson v. New Orleans Pub. Serv., Inc., 291 So.2d 813 (La.App. 4th Cir.1974), writ denied, 293 So.2d 493 (La.1974); Patterson v. Recreation and Park Comm'n for the Parish of East Baton Rouge, 226 So.2d 211 (La.App. 1st Cir.1969), writ denied, 254 La. 925, 228 So.2d 483 (1969); Scott v. Boh Bros. Constr. Co., 195 So.2d 353 (La.App. 4th Cir.1967). The Patterson court specifically reasoned: Our own jurisprudence accords with the general rule that the principle in question is to be accorded limited application and employed only with caution. The reason for this rule is the tremendous *906 burden placed on the property owner when the principle of attractive nuisance is held applicable. Moreover, the attractive nuisance rule is invoked only when the condition or agency causing injury is of such an unusual nature or character as to render it peculiarly attractive and alluring to children.... not every instrument possibly dangerous to a child of tender years, or which such a child might convert into a means of amusement, constitutes an attractive nuisance. On the contrary, for the attractive nuisance rule to apply, the instrumentality or condition must be of a nature likely to incite the curiosity of a child and fraught with such danger as to reasonably require precaution to prevent children from making improper use thereof. Generally courts exclude application of the rule to conditions or instruments not inherently dangerous or peculiarly attractive to children. (citations omitted). Patterson, supra at 216. See also Hunter v. Evergreen Presbyterian Vocational School, 338 So.2d 164 (La.App. 2d Cir. 1976). Clearly, a pile of mud does not fall into the category of objects legally considered an "attractive nuisance" because it certainly is not inherently dangerous. As a matter of law, the presence of a mound of mud used to service a baseball diamond on a playground does not create an unreasonable risk of harm sufficient to impose a duty on the City of Kenner to police the area. See Dunn v. Foster, 422 So.2d 518 (La.App. 5th Cir.1982). Accordingly, the third party plaintiffs' pleadings, we find, do not state a cause of action. Therefore, that part of the trial court's judgment dated May 6, 1986, which dismissed the third party demand of John F. Herbert, Jr. and State Farm Fire and Casualty Company, is affirmed. For the reasons assigned, we set aside that part of the trial court's judgment which grants the motion for summary judgment, and we amend the judgment to read, "IT IS ORDERED that the third party demand of John F. Herbert, Jr. and State Farm Fire and Casualty Company be dismissed, as against third party defendant, the City of Kenner." The appellants and the appellee are to pay their own costs of this appeal. SET ASIDE, AMENDED, AND AFFIRMED. NOTES [1] In addition to those errors pointed out by brackets, the parties are incorrectly designated in this allegation. These errors, however, are of no consequence to the issues presented herein, and these inconsistencies were apparently not objected to at trial. [2] See Ibieta v. Phoenix of Hartford Ins. Co., 267 So.2d 748 (La.App. 4th Cir.1972), for five elements of attractive nuisance.

Order Michigan Supreme Court Lansing, Michigan January 31, 2011 Robert P. Young, Jr., Chief Justice Michael F. Cavanagh Marilyn Kelly Stephen J. Markman 142457 (19) Diane M. Hathaway Mary Beth Kelly Brian K. Zahra, Justices KEVIN EDWARD WOODS, Plaintiff-Appellant, v SC: 142457 COA: 299981 TWENTY THIRD CIRCUIT COURT ADMINISTRATOR, Defendant-Appellee. ___________________________________ On order of the Chief Justice, the motion to waive fees is considered and it is DENIED because MCL 600.2963 requires that a prisoner pursuing a civil action be liable for filing fees. Within 21 days of the certification of this order, plaintiff shall pay to the Clerk of the Court the initial partial filing fee of $26.00, shall submit a copy of this order with the payment, and shall refile the copy of the pleadings which is being returned with this order. Failure to comply with this order shall result in the appeal not being filed in this Court. If plaintiff timely files the partial fee and refiles the pleadings, monthly payments shall be made to the Department of Corrections in an amount of 50 percent of the deposits made to plaintiff’s account until the payments equal the balance due of $349.00. This amount shall then be remitted to this Court. Pursuant to MCL 600.2963(8) plaintiff shall not file further appeals in this Court until the entry fee in this case is paid in full. The Clerk of the Court shall furnish two copies of this order to plaintiff and return plaintiff’s pleadings with this order. I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. January 31, 2011 _________________________________________ jam Clerk 

66 F.3d 317 NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.David Bernard JORDAN, Defendant-Appellant. No. 94-5602. United States Court of Appeals, Fourth Circuit. Sept. 14, 1995. Anthony F. Anderson, Melissa W. Friedman, Roanoke, VA, for Appellant. Robert P. Crouch, Jr., United States Attorney, Joseph W.H. Mott, Assistant United States Attorney, Roanoke, VA, for Appellee. Before HALL, WILKINS, and MOTZ, Circuit Judges. OPINION PER CURIAM: 1 David Bernard Jordan appeals his convictions for conspiracy to distribute cocaine base, 21 U.S.C. Sec. 846 (1988), possession of cocaine base with intent to distribute, 21 U.S.C. Sec. 841(a)(1) (1988), possession of a firearm in relation to a drug trafficking crime, 18 U.S.C.A. Sec. 924(c) (West Supp.1995), possession of a firearm as a convicted felon, 18 U.S.C.A. Sec. 922(g)(1) (West Supp.1995), and possession of a firearm while a fugitive from justice, 18 U.S.C.A. Sec. 922(g)(2) (West Supp.1995). Finding no error, we affirm. 2 Jordan was arrested attempting to deliver a supply of cocaine to his co-defendant, Matthew White at White's house. Police had arrested White and were inside the house pursuant to the arrest when Jordan arrived by car.1 Jordan approached the house but turned around after looking in a front window. Police asked Jordan to stop but he fled and discarded a plastic bag containing cocaine base and powder. As he ran, Jordan kept his right hand under his coat. He eventually stopped, turned toward the police, and was brought to the ground by a detective. Police found a loaded .38 caliber handgun on the ground under Jordan's midsection. 3 At trial, defense counsel objected to the prosecution's use of a peremptory challenge as racially motivated. The prosecution struck Edwin Dennis, a twenty-eight-year-old unmarried African-American male with no children and the sole African-American venireman. When the trial court asked the Government to explain the strike, the prosecutor stated that Dennis was young, single, unmarried, and without children. He explained that the Government wanted jurors with substantial ties to the community.2 In addition, the prosecutor noted that Dennis "acted disinterested, like he was bored," had "his eyes closed," and "looked tired." The court allowed the strike, finding that the reasons articulated by the Assistant United States Attorney were the true reasons for the strike. 4 Jordan raises two claims on appeal. First, he objects to the prosecution's strike of Edwin Dennis from the venire. Second, he claims that there was insufficient evidence to support his conviction for possession of a handgun in relation to a drug trafficking crime.3 For the reasons discussed below, we find both grounds for appeal meritless. I. 5 To sustain a challenge of racial discrimination in jury selection, a defendant must satisfy the standards set forth in Batson v. Kentucky, 476 U.S. 79 (1986). First, he must show facts giving rise to a prima facie case of discrimination. Id. at 96. If he succeeds, the government must articulate a race-neutral justification for the challenged strike. United States v. Grandison, 885 F.2d 143, 146 (4th Cir.1989), cert. denied, 495 U.S. 934 (1990). At this stage, the reason need not be rational or plausible, merely nondiscriminatory. Purkett v. Elem, No. 94-802, 1995 U.S. Lexis 3181, at * 4 (U.S. May 15, 1995) (per curiam). At the final stage, the burden shifts back to the defendant to prove that the strike was racially motivated and that the reason offered was pretextual. Id. We review the district court's Batson findings with deference and reverse only for clear error. United States v. Bynum, 3 F.3d 769, 772 (4th Cir.1993), cert. denied, 62 U.S.L.W. 3552 (U.S.1994). 6 Because the trial court required the prosecution to justify the strike, we need not review Jordan's prima facie case. United States v. Lane, 866 F.2d 103, 105 (4th Cir.1989). Turning to the reasons articulated by the Government for the strike, we find that they are race-neutral and carry no explicit or implicit racial connotations.4 Similarly, we conclude that the trial court did not clearly err in accepting the prosecution's reasons as the true reasons for the peremptory strike. Prior to striking Dennis, the prosecution struck two twenty-two-year-old single white females, leaving no single persons under thirty years of age on the jury.5 The prosecution was entitled to surmise that jurors who were older, married, and had children would care more about the presence of drug activity in their community. United States v. Valley, 928 F.2d 130, 135-36 (5th Cir.1991). Moreover, "[a] prosecutor is justified in striking jurors that he or she perceives to be inattentive or uninterested." United States v. Garrison, 849 F.2d 103, 106 (4th Cir.), cert. denied, 488 U.S. 996 (1988). II. 7 Jordan's claim that the district court erred in denying his motion for judgment of acquittal is meritless. The standard for ruling on such a motion is whether substantial evidence exists which viewed in the light most favorable to the government would permit a reasonable jury to find the defendant guilty beyond a reasonable doubt. Fed.R.Crim.P. 29(a); United States v. MacCloskey, 682 F.2d 468, 473 (4th Cir.1982). A violation of Sec. 924(c) consists of (1) the use or carrying of a firearm; (2) during and in relation to a drug trafficking crime. United States v. Willis, 992 F.2d 489, 490 (4th Cir.), cert. denied, 62 U.S.L.W. 3248 (U.S.1993). To sustain a Sec. 924(c) conviction, "it is enough if the firearm is present for protection and to facilitate the likelihood of success, whether or not it is actually used." United States v. Smith, 914 F.2d 565, 567 (4th Cir.1990), cert. denied, 498 U.S. 1101 (1991). 8 Police testimony established that Jordan carried a .38 caliber handgun when he went to his co-conspirator's house to deliver a supply of cocaine. Possession with the intent to distribute cocaine base is a drug trafficking crime. 18 U.S.C.A. Sec. 924(c)(2) (West Supp.1995); United States v. Fisher, 912 F.2d 728, 731 (4th Cir.1990), cert. denied, 500 U.S. 919 (1991). We find the evidence more than sufficient to prove Jordan's guilt beyond a reasonable doubt. 9 We affirm Jordan's conviction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 1 White testified at trial that Jordan had supplied him with cocaine base to sell since September 1993 2 The transcript reads, "[T]he government looks at the type of community and finds those types, things like married with kids and that sort of thing." On appeal, Appellee explains that the prosecutor actually said "ties to the community." We do not find this language determinative and, therefore, accept the Government's clarification 3 Jordan moved for a judgment of acquittal on this count at the conclusion of the Government's case-in-chief and after the jury returned its verdict 4 Jordan claims for the first time on appeal that the prosecution's explanation was invalid under step two of Batson because it amounted to "gender discrimination on its face." (Brief for Appellant at 10) (citing J.E.B., Petitioner v. Alabama ex rel. T.B., 62 U.S.L.W. 4219, 4220 (U.S.1994)). We disagree. The prosecutor stated that he struck Dennis because he was young, single, and childless, not because he was male. The prosecutors two prior challenges of young, single females also contradicts Jordan's position. We find nothing facially or inherently discriminatory in the Government's articulated reasons for its strike. Therefore, district court did not err in finding these reasons sufficient to satisfy the prosecution's burden at stage two of the Batson analysis. See Purkett, 1995 U.S. Lexis 3181, at * 4 5 Jordan notes that the Government did not strike a thirty-five-year-old single white male, Leon Crush. In addition to being seven years older than Dennis, Crush had prior jury experience. We find that Crush's presence on the jury is insufficient evidence of pretext or discrimination to warrant overturning the finding of the trial court

872 F.2d 1521 50 Empl. Prac. Dec. P 39,046 William H. HAMER, et al., Plaintiffs-Appellants,v.CITY OF ATLANTA, et al., Defendants-Appellees.UNITED STATES of America, Plaintiffs,v.CITY OF ATLANTA, et al., Defendants. Nos. 86-8607, 86-8788. United States Court of Appeals,Eleventh Circuit. May 23, 1989. Antonio L. Thomas, Thomas & Dotson, Atlanta, Ga., for plaintiffs-appellants. Marva Jones Brooks, W. Roy Mays, III, Deborah McIver Floyd, Atlanta, Ga., for City of Atlanta et al. Anthony J. McGinley, Carter & Ansley, Atlanta, Ga., for D. Stewart, G. Rioux, R.G. Bickford, B. Poss and L. Miller. Appeals from the United States District Court for the Northern District of Georgia. Before RONEY, Chief Judge, CLARK, Circuit Judge, and MORGAN, Senior Circuit Judge. CLARK, Circuit Judge: 1 This is an appeal from an order issued by the United States District Court for the Northern District of Georgia determining that a written examination given by the City of Atlanta for the purpose of promoting candidates in the Bureau of Fire Services from the rank of firefighter to fire lieutenant was properly validated. The appellants fault the decision of the district court in two respects: (1) the district court failed to recognize that the validation study on which the City of Atlanta relied was flawed; and (2) the district court erred in not determining whether alternative selection procedures would have had less of an adverse impact on the racial composition of those promoted. 2 The issue in this lawsuit is a narrow one. Although the City conceded that the promotions had an adverse impact on race, the appellants do not assert that the examination was racially biased. Instead, they attack the validation of the test. As will be discussed infra, if business necessity requires employees to perform certain specified skills, an employer is not guilty of violating Title VII of the Civil Rights Act if promotions are made pursuant to testing applicants for those skills by a procedure that is properly validated. 29 C.F.R. Sec. 1607.2(C) states: 3 Nothing in these guidelines is intended or should be interpreted as discouraging the use of a selection procedure for the purpose of determining qualifications or for the purpose of selection on the basis of relative qualifications, if the selection procedure had been validated in accord with these guidelines for each such purpose for which it is to be used. 4 The Guidelines do consider the subject of adverse impact under the heading of "Fairness," which is set forth in 29 C.F.R. Sec. 1607.14(B)(8) and is discussed infra at pages 1531-1532. We affirm. I. HISTORY 5 The history of this case properly begins on September 18, 1975, when black firefighters filed a complaint in the United States District Court for the Northern District of Georgia, alleging that certain employment practices of the City of Atlanta were unlawfully discriminatory and violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e and 42 U.S.C. Secs. 1981, 1983 and 1985 (district court civil action C75-1809, in this court 86-8607). The district court allowed the International Association of Firefighters to intervene on behalf of white firefighters employed by the Bureau of Fire Services of the City of Atlanta. Thereafter, on December 12, 1975, the United States of America, as plaintiff, filed its own action against the City of Atlanta, (district court civil action C75-2315, in this court 86-8788). The district court consolidated the two actions and eventually all parties to this case entered into a consent order resolving all allegations of discrimination and reverse discrimination. In this consent order, the City of Atlanta agreed not to discriminate against any person in its Bureau of Fire Services on account of race. The consent order also included a provision stipulating that the district court retained jurisdiction over this matter and reserved the right to initiate, on its own motion, appropriate proceedings in the event a question arose as to any party's compliance with the provisions of the agreement. The consent order was approved by the district court on November 9, 1979. (R. 5 at 119). 6 The consent decree implicitly ratified City of Atlanta Ordinance Sections 11-3041 to 11-3048 (Defs.Exh. 1) which provided in part: "A candidate shall first take a written examination of knowledge that has been validated for content by a professional tester consulted in accordance with Title VII of the 1964 Civil Rights Act, as amended (42 U.S.C. Sec. 2000e et seq)." The general purpose of the ordinance "is to establish a promotional system for the bureau that provides for the selection of superior officers based solely on merit and qualifications." (Sec. 11-3041). The ordinance makes clear that a written examination is the sole component in making promotions to the rank of lieutenant. Promotion to captain, however, includes both a written examination and an oral examination. 7 In the summer of 1979, the City of Atlanta entered into a relationship with McCann Associates, Inc. of Huntingdon Valley, Pennsylvania, a professional test-developing firm. After preliminary studies and consultations, it was decided in 1980 that McCann was to provide the Bureau of Fire Services with a written, multiple-choice examination, to be used in promoting individuals to two company officer ranks--fire lieutenant and fire captain. The test would be based on a thorough job analysis, be reliable and valid, and would conform to the requirements of the Uniform Guidelines for Employee Selection Procedures. 29 C.F.R. Sec. 1607. 8 After completion of a job analysis, McCann developed a pool of 250 questions from which three alternative examinations could be drawn. In order to demonstrate the job relatedness of the potential exams, McCann subjected them to a criterion related validity study using the concurrent model. As part of the validation process, McCann asked shift commanders and battalion chiefs in the Bureau of Fire Services to give job performance ratings to 78 existing fire captains, using criteria developed by McCann. Forty-two captains were white and 36 were black. McCann trained the shift commanders and battalion chiefs in the rating procedure and the ratings for the 78 fire captains were taken in January, 1981. In March 1981, the pool of 250 questions was administered to the fire captains in the form of a written examination. Prior to taking the exam, McCann provided the fire captains with a test study guide and, after scoring the 78 exams, McCann compared each individual's test score with the performance rating given that individual by his supervisors. 9 The Uniform Guidelines for Employee Selection Procedures ("Guidelines") require a sufficiently high correlation between test scores and performance ratings in order to establish the criterion related validity of a promotion exam. In other words, an employer desiring to use a certain exam must first show that those performing well on the exam are also given high job performance ratings and those performing poorly are given lower job performance ratings. If a statistically significant relationship is indicated, then the examination is considered to be valid because a high grade on the examination is predictive of satisfactory performances. 10 When McCann compared the 78 test scores with their corresponding performance ratings, the correlation proved insufficient to meet the requirements of the Guidelines. Accordingly, none of the three alternative exams were validated. After analyzing the information that had been gathered up to that point, McCann Associates decided that the reason for the poor correlation was the relative inexperience of the shift commanders and battalion chiefs. Most of the supervisors had been promoted to their current positions only nine months previously. Not only did they lack experience at their own job, they had only had nine months to observe their subordinates. McCann concluded that this period of time was insufficient for the supervisors to adequately rate the performance of the fire captains. McCann and the City of Atlanta decided to have the supervisors rate the fire captains once again and compare the new ratings with the original test scores from March 1981. In June 1982, after fifteen months had passed since the exam had been given and after twenty-four months of supervision of those being rated had accrued, the rating was repeated, using the same training and techniques. Eleven new fire captains participated by taking the 250 question exam, raising the number of subjects to 89, 49 of whom were white, 40 of whom were black. When McCann compared the new ratings with the test scores, they found a correlation that was sufficient to satisfy the Guidelines for each of the three alternative forms of the exam. 11 After McCann reported the successful validation of the examination, the City of Atlanta decided to have McCann test the candidates in order to rank them for promotion to fire lieutenant. (R. 23-440). In October of 1984 the Bureau of Fire Services administered a written, multiple-choice examination for the purpose of promoting ten persons to the rank of fire lieutenant in the Bureau. Of the 270 firemen who took the test, 156 were black, 113 were white, and one was of "other" racial origin. (See Def.Exh. 2.) The persons who achieved the ten1 highest scores consisted of nine whites and one oriental. Because this result manifested a statistical adverse racial impact against black persons, the City engaged Dr. John Veres and Dr. Chester Palmer of the University of Auburn at Montgomery, Alabama, to determine whether the examination was validated in accordance with the Uniform Guidelines for Employee Selection Procedures (1978), 29 C.F.R. Sec. 1607 (1982). 12 Although satisfied that the test examination was properly validated, the City informally requested the district court to conduct a hearing for the purpose of determining that the examination was properly validated according to law. Following this request, the court issued an order on May 1, 1986, directing any person to show cause why the examination should not be validated. The City Attorney was directed to serve a copy of the order upon all applicants who took the examination. 13 At hearings held by the district court on May 15, 1986 and July 22, 23 and 24, 1986, a group of applicants, through counsel, appeared and contested the validation of the examination. This appeal ensued. During the course of those hearings, the City of Atlanta assumed the burden of demonstrating that the examination was validated in accordance with the appropriate standards. The City offered testimony and documentary evidence through William Howeth, Vice President of McCann Associates, Inc., and Drs. John G. Veres, III and Chester I. Palmer, Jr., both of Auburn University. The appellants offered the testimony of Dr. Stephen Cole, a research director employed by Research Design Associates in Decatur, Georgia, and who also held a teaching position at the Emory University School of Law. Dr. Cole supported the appellants' assertion that the examination was flawed and had not been properly validated. 14 After receiving all of the evidence offered by the parties in this case, Judge Charles A. Moye, Jr., ruled that the examination was validated in accordance with the Uniform Guidelines for Employee Selection Procedures. An order to that effect was entered on July 25, 1986, but the court delayed the effective date until August 10, 1986, to allow appellants time to file an appeal. The appellants moved the district court to enjoin the City of Atlanta from making any promotions based on the examination pending their appeal of the district court decision. This motion was denied on August 7, 1986. The appellants then moved this court to stay the district court's July 25, 1986 order, pending this appeal. This motion was also denied on August 18, 1986, and this appeal proceeded. II. VALIDATION OF EMPLOYMENT EXAMS 15 In Title VII cases involving the use of written examinations for hiring or promotion, a prima facie case is presented by a statistical demonstration that the test in question has an adverse racial impact. Upon a showing of such impact, the burden shifts to the employer to prove that the test is job related. Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280, 301 (1975); Fisher v. Procter & Gamble Manufacturing Co., 613 F.2d 527, 544 (5th Cir.1980), cert. denied, 449 U.S. 1115, 101 S.Ct. 929, 66 L.Ed.2d 845 (1981); Scott v. City of Anniston, 597 F.2d 897, 901 (5th Cir.1979), cert. denied, 446 U.S. 917, 100 S.Ct. 1850, 64 L.Ed.2d 271 (1980). If the employer establishes the job relatedness of the test, the burden then shifts back to the challenging party to demonstrate that alternative methods of selection would have a lesser adverse impact. Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720, 2725, 53 L.Ed.2d 786, 797 (1977); Albemarle Paper Co., 422 U.S. at 425, 95 S.Ct. at 2375. 16 The Equal Employment Opportunity Commission has issued "Uniform Guidelines on Employee Selection Procedures" to assist in determining whether employment tests are job related. 29 C.F.R. Sec. 1607. The Guidelines "are designed to assist employers, labor organizations, employment agencies, and licensing and certification boards to comply with requirements of Federal law prohibiting employment practices which discriminate on grounds of race, color, religion, sex, and national origin. They are designed to provide a framework for determining the proper use of tests and other selection procedures." 29 C.F.R. Sec. 1607.1(B). The Supreme Court has held that the Guidelines are "entitled to great deference." Griggs v. Duke Power Company, 401 U.S. 424, 433-34, 91 S.Ct. 849, 854-55, 28 L.Ed.2d 158, 165-66 (1971). See also Watkins v. Scott Paper Co., 530 F.2d 1159, 1186-87 (5th Cir.), cert. denied, 429 U.S. 861, 97 S.Ct. 163, 50 L.Ed.2d 139 (1976). 17 The Guidelines refer to three procedures or "validity studies," whereby sufficient job-relatedness may be demonstrated: criterion-related validity, construct validity, and content validity. 29 C.F.R. Sec. 1607.5. The Supreme Court has described these methods of validation: 18 Professional standards developed by the American Psychological Association in its Standards for Educational and Psychological Tests and Manuals (1966), accept three basic methods of validation: "empirical" or "criterion" validity (demonstrated by identifying criteria that indicate successful job performance and then correlating test scores and the criteria so identified); "construct" validity (demonstrated by examinations structured to measure the degree to which job applicants have identifiable characteristics that have been determined to be important in successful job performance); and "content" validity (demonstrated by tests whose content closely approximates tasks to be performed on the job by the applicant). These standards have been relied upon by the Equal Employment Opportunity Commission in fashioning its Guidelines on Employee Selection Procedures, 29 CFR pt. 1607 (1975), and have been judicially noted in cases where validation of employment tests has been in issue. See e.g., Albemarle Paper Co. v. Moody, 422 U.S. 405, 431, 95 S.Ct. 2362, 2378, 45 L.Ed.2d 280, 304 (1975); Douglas v. Hampton, 168 U.S.App.D.C., at 70, 512 F.2d, at 984 [ (D.C.Cir.1975) ]; Vulcan Society v. Civil Service Comm'n, 490 F.2d 387, 394 (CA2 1973). 19 Washington v. Davis, 426 U.S. 229, 247 n. 13, 96 S.Ct. 2040, 2051, 48 L.Ed.2d 597, 612 (1976). 20 In this case, the City of Atlanta chose to attempt validation of its exam through the "criterion-related" method. As the issues in this case hinge upon a clear understanding of this technique, a closer analysis is necessary. 21 At the heart of criterion-related validity is the statistical correlation between performance on the test and objective measures or "criterions" of performance on the job. This is measured in one of two ways. In a "predictive" study, all applicants for a position are given the examination. Those applicants selected for the position are allowed to work at the job for a period of time and their job performance is then measured. Their preemployment test scores are then compared to their job performance ratings. In a second method, known as "concurrent" validation, the test is administered to existing employees and their scores are compared to their job performance. It is this method that was used by McCann Associates in the preparation of the allegedly unlawful examination. 22 To prove that a test is criterion-related, a proponent of an exam must show two elements of correlation. These elements are "practical significance" and "statistical significance." Practical significance is the degree to which test scores relate to job performance and is measured by a "correlation coefficient." Statistical significance is a measure of the confidence that can be placed on the practical significance; that is, it expresses the probability that a particular correlation coefficient occurred by chance. In Ensley Branch of NAACP v. Seibels, 616 F.2d 812 (5th Cir.), cert. denied, 449 U.S. 1061, 101 S.Ct. 783, 66 L.Ed.2d 603 (1980), the former Fifth Circuit felt compelled to state that "explanation of a few statistical concepts is in order." That explanation bears repeating here: 23 Statistically, the degree of correlation between two variables (e.g., entrance exam scores and subsequent school grades) is expressed as a "correlation coefficient" on a scale running from + 1.0 to - 1.0. A perfect positive correlation (e.g., entrance exam scores exactly predict subsequent school grades, with the higher exam scores predicting the best grades) would be expressed as + 1.0, and a perfect negative correlation (e.g., entrance exam scores exactly predict subsequent school grades, except in reverse, with the lower exam scores predicting the best grades) would be expressed as - 1.0. Where the two variables had absolutely no relationship to each other, the correlation coefficient would be .0. The closer a correlation coefficient is to either + 1.0 or - 1.0, the "higher the magnitude" of the correlation; and the closer it is to .0, the "lower the magnitude." Mueller, Schuessler & Castner, Statistical Reasoning in Sociology, 2d Ed., at p. 315. 24 Because a purely random drawing of a sample is liable to produce a correlation coefficient which is somewhat off an absolute .0, the concept of statistical significance becomes relevant. The concept is tied to the statistical theory of probability and is dependent upon the number of people in the sample. Generally, if a correlation coefficient is so low that, on the basis of the sample size involved, more than 1 in 20 random drawings could be expected to produce a correlation at least as great, that correlation coefficient is considered not to be statistically significant, or simply to be the same as a correlation coefficient of .0. On the other hand, if the obtained coefficient could be expected to reoccur no more than once in 20 random drawings, it is considered statistically significant, the statistical indication for which is p 25 Ensley Branch of NAACP, 616 F.2d at 817 n. 13. III. STANDARDS OF REVIEW 26 Appellants take issue with the district court regarding certain findings of fact and the application of a rule of law. Generally, we apply a clearly erroneous standard of review for a factual determination by a district court. Fed.R.Civ.P. 52(a). This standard has been applied previously in a Title VII case questioning the validity of an employment examination. Ensley Branch of NAACP, 616 F.2d at 818. "A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746, 766 (1948). Because the district court's determination regarding the validity of the examination in this case was a factual one, we examine it for clear error. 27 The appellants further claim that the district court misapplied a rule of law regarding the use of alternative selection procedures. This question of law is subject to plenary review. Bailey v. Carnival Cruise Lines, Inc., 774 F.2d 1577, 1578 (11th Cir.1985). IV. THE VALIDITY STUDY ISSUE 28 Appellants contend that the validity study conducted by McCann Associates, Inc. was flawed in two respects: "1. The inconsistency between supervisory ratings and the fire company officer test" and "2. The inconsistency of ratings given by shift commanders and those given by battalion chiefs." (App.Br. pp. 14 and 16.) Furthermore, appellants criticize the fifteen-month delay between the administration of the exam and the supervisory ratings. The district court found that the evidence submitted by appellants did not support their contentions. 29 Dr. Stephen Cole, appearing on behalf of the appellants, testified at the district court hearing that he had observed inconsistencies between the test scores of the participating fire captains and the ratings given those officers by their respective shift commanders and battalion chiefs. Dr. Cole stated: 30 The point here is that there is very little correspondence with those captains between the test and the supervisory ratings. For those of correlation .33, there is very little association between how well you did on the test and how well the supervisors evaluated your job performance. Of the top 25 candidates identified by supervisors, only seven of them would be identified in the top 25 if the test alone was used. (R. 22-180). 31 Dr. Cole also pointed out that the person who ranked first on the written exam was ranked 31st by the supervisors; the person who ranked second on the written exam was ranked 68th by the supervisors; and the person who ranked 20th on the written exam was ranked 79th by the supervisors. Dr. Cole's conclusion was that "... clearly when used as the sole criterion for promotion, the test does not act as a good predictor." (R. 22-183). 32 Dr. Cole is not an Industrial Psychologist and this case apparently offered him his first opportunity to analyze a Criterion Measure Performance Rating (CMPR) system of testing for job skills and knowledge. His testimony that the ratings of the subject for job skills did not correlate with their test scores is seriously flawed. Dr. Cole relied on his (plaintiff's) Exhibit 13 which listed (not by name) the 89 subjects, the ratings given by their supervisors, and their test scores. His testimony to the district court concerned only 25 of the subjects which he picked out because their test scores differed greatly from their ratings. For example, the subject who was ranked at the bottom, 89th, was 5th from the top on test scoring. Cole used him and others to contend that the study results were skewed. 33 It is elementary statistical knowledge that the smaller the sample the more unreliable the result. McCann Associates admitted concern that having only 89 subjects was not as large a group as would be preferred. Dr. Cole shrank the group from 89 to 25 in order to reach a conclusion that the study did not accurately predict that the test would result in demonstrating which firemen would make the best fire lieutenants. The district court correctly rejected Dr. Cole's unscientific approach to the issue. 34 One of the City's experts was Dr. Chester Palmer, a professor of mathematics at Auburn University who had experience in the field of statistical analyses of employee testing for Title VII purposes and had clients such as the United States Navy, United States Air Force, and the personnel Departments of the States of Alabama and Georgia. Dr. Palmer concluded that the McCann study and tests met professional standards. 35 Dr. Palmer conducted five separate analyses of the validity of the CMPR system used by McCann. Dr. Palmer ran these analyses in an attempt to equalize--that is, to take out the extraordinary influences caused by certain factors, such as a very lenient supervisor/rater who scored everyone rather high or such as the captain (ratee) who was rated 89th by the raters but scored fifth on the test. (This person was rated by only one supervisor rather than the usual two or three, which may account in part for the deviation.) Dr. Palmer's term for such persons was "an outlier." Others might use the term "sport" or "deviant." Dr. Palmer discussed the importance of such factors in making an analysis: 36 One of the problems with this kind of study with small "m" is that one person can swing that correlation a large amount. So I tried just to see what would happen if I went back and I ran those charts of the correlations again but I left him out. Okay. Now, I must emphasize I don't have any justifiable reason for leaving him out other than the fact that it looks strange. Okay. That is, I'm not saying that the right thing to do is to leave him out. I can't say that but when you see one person who is that wild, it only makes sense to see what would happen otherwise. 37 The answer turns out to be quite different. Now, we are back to the back of the chart. In the back of the chart is three more of the correlation tables. You can see in the title that these are labeled in the third line of the title, "88 subjects, one outlier removed." The first one is what the correlations would be for the combined group if you did not include that individual. And we see that now if you read down under the total column we now have two of them that are almost .4. We've got one that's 393 and one that's 398. 38 So that essentially this one individual will change the correlation from .4 to .3. That's what happens in small groups when there's one person who is sort of off the wall. 39 Q. I haven't found the .4 and the .3? 40 A. I'm sorry. The .3 is not in this table. It's from the previous one. But if you read under the column that says "total," if you read down for example to the one that says, "criterion standard," 393, that's what McCann would have gotten if they hadn't had that one individual, if they just had the other 88 people, and the others are what the other ones would have been. They are all higher than they were before. They are all significant at the one percent level. 41 Now, the next two charts are the same thing as they were before. One set for the blacks, one set for the whites. It happens that this one individual is black so that the chart for the whites is going to be the same as it was before. They are the same people. But the chart for the blacks is different, and if you now look under "total" you see that all of a sudden they have gone way up. 42 For example, for the McCann standardization, the one I have labeled "crit std" it has now gone all way up to .45. It is now significant past the one percent level. What's happening is that the only reason that that isn't significant for blacks separately is this one person. Now, again, I have to emphasize I don't think you can just throw him away because I don't have a legitimate reason to say that's an error of some kind. But the fact is that actually the correlation would be higher for blacks than for whites if it hadn't been for one person. And that's something that I think kind of important in interpreting results. 43 R. 23 at 337-39. 44 The second issue raised by the appellants deals with the supervisory ratings given by the shift commanders and the battalion chiefs. Dr. Cole criticized these ratings on the ground that inconsistencies existed between the ratings given particular subjects by their respective shift commanders and those given by their battalion chiefs. Some fire captains were ranked at a particular level by their shift commander and ranked considerably lower by their battalion chief. (R. 22-164). Dr. Cole concluded that the supervisors were using the rating system differently, despite McCann's efforts to achieve uniformity.2 45 The City of Atlanta responded to this criticism by pointing out that McCann had employed a standardization procedure to correct the inconsistencies between the ratings. Dr. Palmer testified that McCann had made adjustments to the ratings so that the rankings given by each supervisor were uniform. McCann examined each supervisor's rankings to determine what that shift commander or battalion chief considered to be average job performance. Those rankings were then statistically adjusted to conform with a uniform standard of average job performance based on the rankings of all supervisors. The rankings of those individuals who the supervisor felt rated above or below average were similarly adjusted to reflect the collective average. Dr. Palmer agreed that standardization was the proper procedure in this instance, but stated: 46 The next question is how should you standardize and the problem I have is that there's no professionally recognized formula for how to do this. There are different ways you could set up the way the numbers work. I don't have any particular objection to what McCann did but I would be very unhappy if the study yielded a significant correlation their way and it didn't come out any other way because I'm not sure their way is the best. So I went back and did it a bunch of different ways, ... (R. 22-297). 47 To be precise, Dr. Palmer performed five different standardization procedures.3 Dr. Palmer testified that each of the five standardization procedures yielded virtually identical results. He stated: 48 Now, I'm pleased to say after all this--and we can look at the numbers, if you like, but it didn't make any difference. That's what it comes right down to. Actually, it made very little difference which of these you used. Including the raw score, which I thought was amazing but I ran all my analyses, you know, when I did the correlations to see if things were significant, I ran all my analyses five times. Once for each of those five ways of giving the number to see if it made any difference how you gave the number, and it really didn't. (R. 22-303). 49 Dr. Palmer expressed confidence in the validity of the supervisory ratings and their correlation with the test scores, stating: 50 That's one reason that I have faith that the numbers--the correlations reported by McCann Associates are reasonable because when I did some of these things that were totally different I cam out with almost the same thing. That's a good reason to believe that the numbers are reasonable, that they haven't just concocted a method that gives big numbers. (R. 22-303). 51 In sum, the City of Atlanta maintains that the Guideline requirements regarding the establishment of validity have been met; therefore the reliability of the criteria measurements are irrelevant. Mr. William F. Howeth testified that the exam known as Form A was found to have a correlation coefficient of + .33.4 (R. 20-38). The statistical significance was demonstrated to be p 52 The final criticism raised by the appellants is the possibility that the fifteen-month delay between the administration of the exam and the supervisory ratings may have led to "contamination." McCann allowed any fire captain participating in the validity study to learn his score on the written examination by submitting a self-addressed envelope along with his answer sheet at the completion of the test. The exam was given in March 1981. The test scores were not revealed to anyone other than the individual who had taken the exam. Appellants suggest that the shift commanders and battalion chiefs may have learned the test scores of the fire captains under their supervision. When the supervisors ranked these fire captains in June 1982, appellants maintain that knowledge of these scores may have led the shift commanders and battalion chiefs to rate individuals in accordance with their performance on the exam. Appellants point out that the Guidelines specifically warn against this form of contamination. "Proper safeguards should be taken to insure the scores on selection procedures do not enter into any judgments of employee adequacy that are to be used as criterion measures." 29 C.F.R. Sec. 1607.14(B)(3). Beyond raising this possibility, the appellants offer no evidence of any actual contamination. 53 In the course of cross-examination, Dr. Palmer testified that while there were potential problems with the fifteen-month delay, McCann had taken steps to avoid the possibility of contamination. He stated: "There is a possibility that the supervisors who were doing the rating might have known the scores of those people that are being rated. That is something you would normally try to prevent." (R. 23-407). Documentary evidence submitted by the City of Atlanta indicated that McCann considered the possibility of contamination and rejected it based on their analysis of the circumstances leading to the second set of performance ratings in June 1982. In addition, McCann engaged an independent psychologist to make a complete statistical study of the ratings data to determine if any evidence of contamination existed. The psychologist concluded: "I find no evidence of contamination in the second set of ratings and I believe it is unlikely that such contamination occurred."5 54 As mentioned in the beginning of this opinion, the Guidelines require consideration of fairness when a test is validated through a criterion-related study. The applicable section states: 55 (b) Investigation of fairness. Where a selection procedure results in an adverse impact on a race, sex, or ethnic group identified in accordance with the classifications set forth in section 4 above and that group is a significant factor in the relevant labor market, the user generally should investigate the possible existence of unfairness for that group if it is technically feasible to do so. The greater the severity of the adverse impact on a group, the greater the need to investigate the possible existence of unfairness. 56 29 C.F.R. Sec. 1607.14(B)(8)(b). Dr. Palmer discussed his analysis with respect to the fairness doctrine: 57 Q. Dr. Palmer, did you perform any analyses on whether the examination was fair to black applicants in this case? 58 A. Yes, I did. I should perhaps begin by explaining what "fairness" means in this context. The accepted definition of "fairness" in a criterion context like this is not whether groups differ in their test scores or not but whether, for example,, if you have a black with a score of 75 and a white with a score of 75 you would expect them to be equally good officers; that is, are the predictions roughly the same for blacks and whites. 59 Obviously, if you expected a black who made a 75 to be as good as a white you made an 80, there would be some unfairness there because you are preferring the person with an 80 on the basis of his test score. And you can really only do that if it's justified by your expectation of performance. And so there's a standard way of testing this. Actually, McCann Associates did this for their criterion measure and it appears in the report. I arranged the computations slightly differently but I did it for all five of these and they formed--the results of this formed my final exhibit which I'm sure pleases everyone, which is exhibit 18, and I should perhaps say something else before we go into the numbers, too. Both the Guidelines and the standards require investigation of test fairness when it is technically feasible. Now, I believe that it is arguable whether or not it was technically feasible under these circumstances, the groups are so small--we are talking about groups of 40 and 49--that I would probably be sympathetic to an argument that it wasn't really technically feasible. 60 On the other hand, since it was easy to do I did it anyway and these are the results. And I sort of think this is arguable whether one needs to do this but as I said McCann Associates did it and since it was easy to do I did it rather than argue that it might not be feasible because I think that's a judgment call. 61 What we have here is five sets, each of which contains three pages. 62 * * * 63 * * * 64 If the number for race in the last column under where it says "probability greater value of 't,' " if that number were below .05 it would say that race was statistically important, significantly important. We see here that it is not, that the coefficient is .20, that it's well within the range that could be expected by chance. 65 * * * 66 * * * 67 The test for that is again on the bottom line. It's the variable called "interact," which stands for interaction, and again we can look under the last column where it says "probability of getting a value that large by chance," we see that it's .65 which is fine. That's actual--that means that the effect is actually smaller than we would expect to happen by accident. 68 * * * 69 * * * 70 Q. What is the conclusion that you would draw from your examination of defendant's exhibit 18 collectively? 71 A. There is no evidence of unfairness on a racial basis for this test as compared to the criterion measure. 72 R. 23 at 339-42. 73 Dr. Palmer concluded that McCann Associates had met the requirements of the Guidelines both because the test accurately measured the skills and talents needed by fire lieutenants, and because the fairness doctrine requirements had been fulfilled. 74 We have discussed the fairness doctrine although the issue was not raised by appellants nor discussed by Dr. Cole in his testimony. It is helpful to note here the comment of the district court judge at the conclusion of the evidence: 75 The Court: Well, I'll do it this way. I don't know that I can just mentally go through the various things that are challenged but I will make subsidiary rulings as requested. But I will find the test valid and my general basis is this. I recognize the technical challenges to the test, that is, I understand what the challenges are. 76 To me it is important that there is not the slightest suggestion in any of the challenge that there is any racial bias contained in any of the questions. There's not been the slightest challenge--and it may be inappropriate in this type of case--but there isn't the slightest challenge as to the job relatedness of the items despite the admitted obvious and severe adverse racial impact which is recognized by the court. 77 Now, differing from the police case, there was in that case what appeared to the court to be an admission, concession, universal agreement that the test instrument did not measure a substantial proportion of the job content. There is no such question here and that is the difference as I see it, and particularly with respect to what I gather is the suggestion here that maybe additional instruments should be used. R. 19 at 2.6 78 After receiving all the evidence in this case, the district court ruled that the examination had been properly validated. The district court judge, with the agreement of all parties, made a general ruling that the test was valid and offered to make subsidiary rulings as requested. No such requests were made. As a result, this court is placed somewhat at a disadvantage when asked to rule on the correctness of the decision below, due to the lack of meaningful insight into the basis for the trial court's holding. In an earlier case involving the validity of a promotion exam, this court stated: "Had the court made numbered separate findings of fact and conclusions of law, we might not be in such perplexity. The discursive mode it adopted, while permissible under the rules, leaves the reader frequently in the dark as to the legal assumptions that may underlie any particular fact assertion." Nash v. Consolidated City of Jacksonville, 763 F.2d 1393, 1398 (11th Cir.1985), petition for cert. filed (May 27, 1988). 79 The finding of validity by the district court must be examined by this court under a standard of clear error. Ensley Branch of NAACP, 616 F.2d at 818. We must therefore consider whether there was sufficient evidence on which the trial court could base its decision that the examination had been properly validated. Part of this inquiry requires an examination of the weight that is to be given to the opinions of the respective expert witnesses in this case. "... [O]ne of the most generally accepted rules of all jurisprudence, state and federal, civil and criminal, is that the questions of credibility and weight of expert opinion testimony are for the trier of fact...." Mims v. United States, 375 F.2d 135, 140 (5th Cir.1967). "Credibility choices and the resolution of conflicting testimony are for the trial court, if not clearly erroneous." Middleton v. Dan River, Inc., 834 F.2d 903, 910 (11th Cir.1987), citing United States v. Reddoch, 467 F.2d 897, 898 (5th Cir.1972). In Anderson v. Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 1513, 84 L.Ed.2d 518, 529-30 (1985), the Supreme Court stated: "When a trial judge's finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error." 80 At the district court hearing, Dr. Cole, the lone witness for the appellants, testified under cross-examination that he had not taken a course with test construction as its sole focus; that he had not taught courses focusing solely or primarily upon psychometrics, test construction, or test validation; that he had never published in the areas of psychometrics or test construction; and that he had never been in charge of construction of a promotional examination similar to that involved in this case. (R. 22-188-98). He further testified that his Ph.D. was in the area of human experimental psychology (R. 22-190), and his major publication was in the area of sleep research. Dr. Veres and Dr. Palmer, witnesses for the City of Atlanta, were accepted by the appellants and the district court as experts. (R-20-65 and 22-264). 81 The district court, upon consideration of the credentials of the witnesses, their testimony, and the evidence presented, determined that the experts testifying on behalf of the City of Atlanta were more persuasive and ruled that the test had been properly validated. "Job-relatedness can be established through the testimony of expert witnesses supported by a validation study." Nash v. Consolidated City of Jacksonville, 837 F.2d 1534 at 1537-38 (11th Cir.1988) (citations omitted). "A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. at 395, 68 S.Ct. at 542. Upon a review of the "entire evidence," we are not left with this level of doubt regarding the decision of the district court. Because we lack a "definite and firm conviction that a mistake has been committed," we reject the appellants' objections.V. THE ALTERNATIVE SELECTION PROCEDURES ISSUE 82 The appellants also allege that the district court erred in not requiring the City of Atlanta to review supplemental or alternative measures to lessen the adverse racial impact of the examination. Appellants cite Giles v. Ireland, 742 F.2d 1366 (11th Cir.1984), in support of this argument. Reliance on Giles in this instance is misplaced as Giles clearly adopts the ruling in Albemarle Paper Company v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). While the district court is required to determine "whether adequate alternatives with a lesser adverse impact would serve the employer's needs," Giles, 742 F.2d at 1374, Albemarle clearly places the burden of demonstrating the usefulness of alternatives on the complaining party: 83 If an employer does then meet the burden of proving that its tests are "job related," it remains open to the complaining party to show that other tests or selection devices, without a similarly undesirable racial effect, would also serve the employer's legitimate interest.... 84 Albemarle, 422 U.S. at 425, 95 S.Ct. at 2375. 85 Appellants point out that Mr. William Howeth of McCann Associates admitted on cross-examination that an oral component of the examination would be desirable. (R. 20-53). They fail to point out, however, that Mr. Howeth's complete testimony was that while an oral interview would be desirable, it was not necessary due to the positive results of the validation study performed on the written exam. When asked if it was his opinion that another component needed to be added to the exam in order for it to comply with the appropriate federal guidelines, he replied: "Clearly not ... because the instrument that was used is a valid instrument." (R. 20-36). Appellants presented no evidence demonstrating that an oral interview or any other alternative procedure would lessen adverse racial impact while serving the "employer's legitimate interest." 86 The burden of establishing the effectiveness of alternative selection procedures lies with the complaining party. We cannot fault the district court for not requiring such a showing by the City of Atlanta. Because the district court properly placed the burden on the appellants and the appellants failed to carry that burden, we must reject the appellants' claims regarding the use of alternative selection procedures in this case. VI. BUSINESS NECESSITY 87 The business necessity test is part of the employment discrimination law of this circuit. Business necessity is closely akin to job relatedness and the terms are often interchanged. Job relatedness is used in analyzing the questions or subject matter contained in a test or criteria used by an employer in making hiring or promotional decisions. Business necessity is larger in scope and analyzes whether there is a business reason that makes necessary the use by an employer of a test or criteria in hiring or promotional decision making. 88 The doctrine in this circuit originated in Pettway v. American Cast Iron Pipe Company, 494 F.2d 211, 244-45 (5th Cir.1974), cert. denied, 439 U.S. 1115, 99 S.Ct. 1020, 59 L.Ed.2d 74 (1979). In Pettway the company had required an applicant to pass a test as a prerequisite to hiring. The district court eliminated that requirement. The district court did not eliminate the employer's requirement that admittance to an apprentice program required a high school education. Our court struck the requirement of a high school diploma or equivalent criterion because it did not measure the skills necessary for the course work required by the apprenticeship. In Pettway, we said: 89 The test is whether there exists an overriding legitimate business purpose such that the practice is necessary to the safe and efficient operation of the business. Thus, the business purpose must be sufficiently compelling to override any racial impact.... 90 494 F.2d at 245. 91 The most applicable circuit case to the one under consideration is Nash, 837 F.2d 1534. There the issue involved the promotion of firefighters to the position of lieutenant in that city's fire department. The City of Jacksonville failed to promote appellant Nash because of his low score on a promotion examination. Nash showed an adverse impact and the panel in Nash discussed the problems related to those we confront. However, in Nash the City failed to establish that the test used for promotion purposes was validated under the Guidelines, 29 C.F.R. Sec. 1607. The panel found that the City had failed to prove that the test established job relatedness and said the following about business necessity: 92 Thus while the City has a business necessity in ensuring that it promotes only qualified firefighters to lieutenant, it has no business purpose at all for using an improper means to do so. The City presented no evidence on why a racially discriminatory test is a business necessity. 93 837 F.2d at 1539. This statement followed a finding by the panel that the City's expert had admitted that 27 of the 97 questions on the 1981 examination had an adverse impact on black applicants. 94 At no point in this case, in the testimony or the briefs, is there any reference to whether the test given was a business necessity. It is apparently assumed by all of the parties and the district court that once job relatedness was shown, a separate showing of business necessity was unnecessary. This may well stem from the consent decree and the City Ordinance previously quoted. The consent decree contains the following paragraph: 95 X. That the City shall, as a goal, seek and use good faith efforts to recruit and hire applicants so that, within three (3) years from the entry of this decree, the representation of white and black firefighter recruits, among those hired during this time period, shall approximate the representation among those hired in the years 1970-1975, this Court having previously found no evidence of discrimination during this time period. To this end, the City agrees to take the following actions as part of its hiring procedures. 96 A. To make a clear policy statement of non-discrimination toward all races as part of its recruitment efforts, which statement shall convey the following, or language substantially similar to the following: 97 "Allegations have been made in the past that the City has discriminated against whites and blacks. The City wishes to make clear that it has no policy of discrimination for either black or white applicants, and that all are encouraged to apply for the position of firefighter." 98 Such policy statement shall also specify that residency within the City of Atlanta is not a condition of employment. 99 B. To make affirmative recruitment efforts throughout the surrounding five-county area, in a substantially uniform manner, using racially balanced teams of recruiters, such efforts to exclude advertisements visible only in neighborhoods dominated by one racial group. 100 C. To utilize a professionally developed test. R. 5 at Tab 119, p. 4-5. (Emphasis added.) 101 It is the function of the district court and ourselves to be guided by the consent decree in this case and the City Ordinance which was adopted concurrently with the entry of the consent decree. The City Ordinance provides for a written examination for promotion to lieutenant conditioned upon the examination being validated pursuant to the Title VII proceedings. Since the district court and this panel find that the test was properly validated, and since the appellants have as their only appellate contention that the test was not properly validated, we conclude that there is no error in the district court not having considered this factor. Our own review of the validation report of McCann Associates and the job analysis of fire lieutenants and fire captains convinces us that a test of this nature is a business necessity. It is a matter of common sense that the most qualified firefighters should be promoted to the positions of lieutenant and captain. While only a few skills are needed to put out a grass fire or a burning automobile, fire departments in many instances are called upon to save human life, preserve property, and extinguish fires caused by chemicals and other incendiary causes. 102 In performing the job analysis and in preparing the test questions, McCann Associates considered a variety of knowledges, skills and abilities required of those in command. The following is a condensation of some of those knowledges, skills and abilities: 103 A. Fire chemistry and physics knowledge. This analysis pointed out the necessity of the officer in charge of a crew of firefighters being able to identify the cause or source of a fire in order to determine the methodology to be used in fighting the fire, as well as an understanding of the chemical and physical properties of fire, smoke, heat, etc., in order to protect the public. 104 B. and C. Fire attack knowledge and fire extinguishment knowledge. Included is the necessity of initial evaluation of the fire scene, rescue considerations and performance of firefighters and equipment, as well as choosing the appropriate fire extinguishment methodology and use of special equipment. 105 D. Building construction knowledge. 106 E. Knowledge of local conditions which takes into consideration that the officer in charge must know a variety of ways of reaching the location of the fire, coordinating the route to be taken with those being taken by other fire companies responding to the call, locations of water supplies, hydrant locations, etc. 107 F. G. and H. Knowledge of administrative procedures of the fire department to insure adherence to policies and procedures, as well as an ability to supervise some ordinance while maintaining a high level of morale. 108 There were 12 other categories of skills and abilities used by McCann. The study shows the vital importance of promoting only qualified persons to the rank of officer positions in the Atlanta Fire Bureau and the business necessity of the test. VII. CONCLUSION 109 This is a difficult case both factually and technically, perplexing to the City of Atlanta, the appellants, and the courts in no small measure. By the terms of a consent order entered into in 1979, the City of Atlanta agreed not to discriminate against any person in the Bureau of Fire Services. See also Afro-American Patrolmen's League v. Atlanta, 817 F.2d 719 (11th Cir.1987) (consent decree whereby race would play no part in the promotion process in Atlanta Bureau of Police Services). In an attempt to avoid the influence of race in the promotion of firefighters to fire lieutenants, the City wished to base advancement on the results of a scored written exam. Unfortunately the exam, though properly validated, had a serious adverse racial impact. 110 The job of a fire lieutenant is a difficult one, requiring a high degree of skill, knowledge and experience, as indicated by the job analysis conducted by McCann. Unlike a production line worker or salesperson, a fire lieutenant's job performance is difficult to quantify. But the human and economic costs that are involved in the poor performance of this job are enormous. The risks of death, injury and property damage are greatly magnified when firefighting leadership is not of the highest possible calibre. The Court of Appeals for the Tenth Circuit, recognizing this reality with regard to airline pilots has held that "when the job clearly requires a high degree of skill and the economic and human risks involved in hiring an unqualified applicant are great, the employer bears a correspondingly lighter burden to show that his employment criteria are job-related." Spurlock v. United Airlines, Inc., 475 F.2d 216, 219 (10th Cir.1972). Accord, Walker v. Jefferson County Home, 726 F.2d 1554, 1558 (11th Cir.1984). It is clearly imperative that the best qualified candidates should be singled out for advancement to a position as important as fire lieutenant. We cannot fault the City of Atlanta for doing precisely that, without regard to race. 111 Since it has been demonstrated that the decision of the district court recognizing the validity of the promotion examination in this case was not clearly erroneous, and the appellants failed to carry their burden of demonstrating that alternative selection procedures would have less adverse impact, the district court finding that the examination has been properly validated is 112 AFFIRMED. 1 On May 15, 1986 at the hearing Commissioner of Public Safety George Napper, Jr. testified there were four vacancies for fire lieutenant and the promotions would go to those receiving the highest scores. There was no testimony as to the racial composition of the additional four persons 2 These efforts included developing a rating system whereby the rater uses a separate rating sheet for rating each of nine performance dimensions. The rater rates all of his subordinates at one time for a dimension and then starts over and rates all of his subordinates on the next dimension, etc. The purpose of this system was to encourage ratings based on a comparison of how each subject performs a specific dimension in relation to the performance of all his fellow subjects. It discourages rating a subject on the basis of his overall performance and focuses on the subject's strengths and weaknesses Performance was not ranked numerically to avoid the tendency of some raters to associate a number value with the value of a subject's performance. The rating process used a ruler-like scale with five areas of proficiency for each particular dimension described in performance terms. This allowed the rater to distinguish among his subordinates those who possessed the dimension being rated in greater or less degree. McCann trained the raters prior to their participation and emphasized that the ratings would have no employment consequences for any of the subjects. The raters were urged to use a rating standard based on an "average" drawn from all the fire captains they had ever known. The importance of rating the subjects on personal observation rather than potential was stressed. 3 According to his testimony, Dr. Palmer duplicated the procedure used by McCann, performed an analysis utilizing unadjusted raw data, and selected three procedures of his own design to insure that McCann's standardization had not yielded inaccurate results 4 This figure was computed using a statistical technique known as a Pearson Product Moment Correlation 5 The results of this independent evaluation are reported in Defendants' Exhibit 4A: The Validation of a Written Test for Fire Company Officers (Lieutenant and Captain), pp. 42-43, McCann Associates, Inc. (1983) 6 The police case to which the district court makes reference is found on appeal in Afro-American Patrolmen's League v. Atlanta, 817 F.2d 719 (11th Cir.1987). A panel of this court affirmed this same district judge's holding in that case that the City was in civil contempt for violating the 1980 consent decree which governed Atlanta's police department and the civil rights case comparable to this proceeding which started in 1979

185 B.R. 1009 (1995) In re MALL AT ONE ASSOCIATES, L.P., Debtor. Bankruptcy No. 93-15504 DAS. United States Bankruptcy Court, E.D. Pennsylvania. August 31, 1995. *1010 *1011 Lawrence J. Tabas, Philadelphia, PA, for debtor. Douglas Candeub, Adelman, Lavine, Gold & Levin, Philadelphia, PA, for Mall at One Group, L.P. Joseph DiGiuseppe, Philadelphia, PA, for City of Philadelphia. Stewart Paley, Klehr, Harrison, Harvey, Branzburg & Ellers, Philadelphia, PA, for Bank of New York — Nat. Community Div. Lawrence G. McMichael, Dilworth, Paxson, Kalis & Kauffman, Philadelphia, PA, for First American Title Ins. Co. Ivan J. Krouk, Lincoln Rittenhouse, Philadelphia, PA, for RK Mall Corp., general partner of the debtor. Frederic Baker, Ass't. U.S. Trustee, Philadelphia, PA. OPINION DAVID A. SCHOLL, Chief Judge. A. INTRODUCTION In the instant dispute, we are confronted with several issues arising in context to objections to proofs of tax claims ("the Objections") filed by the City of Philadelphia ("the City"). As to the issues to which the parties have directed the most attention, we will sustain the objection to all taxes which arose prior to the Debtor's purchase of the real property owned by it at the commencement of the underlying bankruptcy case, a shopping mall located at Roosevelt Boulevard and Grant Avenue in Philadelphia ("the Mall"). We believe that this resolution is appropriate because the City can effectively assert these claims against the purchaser of the Mall at an auction sale conducted in conformity with the Debtor's confirmed plan, especially since this party was also the prior owner of the Mall who was liable for the taxes arising prior to the Debtor's ownership of the Mall, and because the issues raised are unresolved state law issues in which the City has a strong interest, thus justifying our abstention. We also hold that the City's real estate tax claims and its pre-petition business use and occupancy 1993 tax ("BU & O") claims are properly classified as seventh priority, rather than secured claims. As such, we hold that the Debtor's confirmed plan allows the City to receive most of the compensatory interest which it seeks, but not penalties which are collectible in addition to interest. Further, we find that the City post-petition 1994 real estate tax claims and its post-petition BU & O tax claims are properly classifiable as administrative claims as to which the Debtor's confirmed plan does not preclude the City from receiving all penalties as well as interest. Finally, we honor the City's request not to classify the 1995 real estate taxes, and designate them as simply nondischargeable post-confirmation obligations also collectible from the Mall's purchaser. B. FACTUAL AND PROCEDURAL HISTORY MALL AT ONE ASSOCIATES, L.P. ("the Debtor") filed the underlying voluntary Chapter 11 bankruptcy case on September 24, 1993. As we explained in a prior to-be-published Opinion, now reported only at 185 B.R. 981 (Bankr.E.D.Pa.1995) ("Opinion II"), in which we mostly denied the Debtor's motion to recover attorney's fees and expenses from its primary secured creditors pursuant to 11 U.S.C. § 506(c), the Debtor's only business has been ownership and operation of the Mall. 185 B.R. at 984. As is noted in Opinion II, at id., the Debtor had four principal creditors at the outset of the case: (1) the Bank of New York — National Community Division, the *1012 first mortgagee of the Mall ("BNY"), which held a fully secured claim of $4.3 million; (2) Mall at One Group, L.P. ("Group"), the second mortgagee of the Mall, holding a claim of approximately $5.5 million which, in light of he $7.0 million value of the Mall, is undersecured; (3) ING Vastgoed One B.V., a third mortgagee whose $3.8 million claim was entirely unsecured; and (4) the City, which asserted secured, priority, and administrative tax claims totalling over $500,000. After several failed attempts at presenting a confirmable plan, the Debtor succeeded in achieving confirmation of its Fifth Amended Plan of Reorganization Pursuant to Chapter 11 of the United States Code ("the Plan") on January 17, 1995. The Plan contemplated a sale of the Mall to a private entity, New Plan Realty Trust ("New Plan"), for a price of not less than $7 million, and provided for an auction sale of the Mall in the event that the sale to New Plan did not occur. Unfortunately, the sale to New Plan fell through, to the disappointment of all interested parties. As a result, the anticipated smooth consummation of the Plan did not occur. Instead, the auction alternative was triggered, which ultimately resulted in a successful credit bid of $7 million for the Mall by Group at the auction of April 11, 1995. As was exemplified by a dispute regarding the bid process resolved in Group's favor in a previous decision reported at 1995 WL 318851 (Bankr. E.D.Pa. May 23, 1995) ("Opinion I"), and as was noted in Opinion II, 185 B.R. at 984-985, these unexpected developments have led to considerable rancor and litigation among the parties. This is not surprising, because the Plan provisions are being applied to scenarios not envisioned by the parties at the time of confirmation. The City filed two claims which are the subject of the Objections. The first (Claim No. 2), filed December 17, 1993, covered real estate taxes for tax years 1988, 1989, and 1993, and asserted a $288,048.06 totally-secured claim. The second (Claim No. 3), filed January 10, 1994, recited a $730.30 secured claim for unpaid water and sewer charges billed in June 1990,[1] and a $92,024.33 priority claim for BU & O taxes arising in various months between May 1988 and September 1993. The Plan, drafted and confirmed in happier days when the New Plan sale was contemplated, treated the City's BU & O tax claims in Class 2 and its real estate tax claims in Class 3. The Plan provides for treatment of Class 2 claims as follows: The Debtor expects to reach an agreement with the City as to Debtor's liability for business, use and occupancy taxes. . . . All Class 2 Allowed Claims shall be paid in full in Cash on the Effective Date or as soon as practicable thereafter, unless a holder of such Claim agrees to less favorable treatment. A total of 730.30 is claimed due by the City for water and sewer service and $92,754.63 was originally claimed due by the City for BU & O Taxes. The Debtor does not believe it is liable for BU & O Taxes in excess of $3,317.04. Such Claim for BU & O Taxes is therefore a Contested Claim. As part of the settlement discussed in Section 3.3 below [addressing the Class 3 claims], the Debtor expects the City to agree with the Debtor's position with respect to BU & O Taxes. Class 3 claims, meanwhile, are treated as follows: The 1993 (together with interest thereon through August 15, 1994) real estate taxes will be paid in full in Cash on the Effective Date. Although the Debtor does not believe it is liable for the 1988 and 1989 real estate taxes, and as the Debtor further believes that the taxes assessed by the City for 1988 and 1989 are excessive, such Claim is therefore a Contested Claim. In order to remove the lien of the 1988 and 1989 real estate taxes from the Property (a condition to its sale to the Property Purchaser or to any purchaser pursuant to an auction sale) without the delay and expense of litigation, the Debtor will agree to *1013 pay the 1988 and 1989 real estate taxes (together with interest thereon through August 15, 1994) in full in Cash on the Effective Date, provided that the City (i) agrees to accept $10,000 in respect to its Class 1 [administrative] Claim for payment of post-petition real estate taxes as an administrative expense, (ii) agrees that the Debtor's liability for BU & O Taxes is limited to $3,317.04 and (iii) fully releases Group and the Property Purchaser or any purchaser through an auction from any liability arising in connection with the Property at any time until the Confirmation Date, for any pre-petition or post-petition real estate taxes, BU & O Taxes or other taxes related to the Property. The global settlement between the Debtor and the City anticipated as to much of the tax liability in issue was unfortunately never consummated. Therefore, the terms set forth in the last sentence of the immediately preceding Plan section never became effective. On April 7, 1994, just prior to the auction sale, Group filed the Objections in issue. The Objections disputed numerous aspects of the City's claims, including the allegedly improper retroactive revocation of tax abatements previously granted to Group, as the prior owner of the Mall, for tax years including 1988 and 1989; the claim of secured status; the inclusion of penalties; and most of the liability for BU & O taxes. The Objections were originally scheduled for a hearing on May 24, 1995, but the hearing was continued several times to attempt to finalize a proposed settlement. Finally, on June 28, 1995, we ordered that a further request for a continuance until July 19, 1995, would be the last allowed. BNY, the Debtor, and First American Title Insurance Co. ("1st American"), which insured the Mall's title in the purchase by the Debtor, as unencumbered, joined the Objections on April 11, 1995; June 21, 1995; and June 27, 1995, respectively. No settlement was reached and the hearing was in fact conducted on July 19, 1995. At the outset, we sustained the City's Objection to 1st American's participation in the hearing due to its lack of standing as a non-creditor. The bulk of the testimony focused on the validity of the City's attempted revocation of the tax abatement previously granted to Group, resulting in 1988 and 1989 real estate tax claims totalling about $160,000. Called by the Objectors were Arthur M. Halvajian, Group's former managing partner; Charles Morrison, a City employee who was formerly its "abatement coordinator;" Ivan Krouk, an attorney who is a shareholder of the Debtor's general partner, RK Mall Corp.; William J. Taylor, an agent of 1st American; and Michael Weinstein, a partner in the firm of the Debtor's counsel, who presented his expert opinion as to why the tax abatement could not have been legally rescinded. The City called three of its employees, Joseph N. Williams, who testified at some length about tax abatements; Karen Arthur, who spoke to the BU & O claims; and Kevin O'Donnell, who briefly testified concerning the 1993-95 real estate taxes. At the close of the hearing, the interested parties were given until August 4, 1995, to file opening briefs, and until August 11, 1995, to file reply briefs. Having reviewed the parties' opening briefs and having concluded that the parties' positions were unclear on the crucial subject of their respective bottom lines, we entered an Order of August 8, 1995, requesting the parties to each clearly disclose what they believed to be the correct amounts and classifications of all of the tax claims in issue. Group, the Debtor, and the City all proffered two timely submissions. The testimony established certain history of the ownership of the Mall relevant to the issues in question. The Mall was originally built and owned by Group. Group applied to the City for an exemption from its real estate taxes on its improvements to the commercial or business property in issue on December 28, 1983, after the Mall's completion. This application was approved on May 28, 1985, and Group was granted a fifty (50%) percent tax abatement, to be effective from January 1, 1985, through December 31, 1989. When Group allegedly failed to keep current with all of its City taxes in 1988 and 1989, which the City claimed was a condition of the abatement, the City proceeded to revoke the abatement for 1988 and 1989 by a letter dated January 16, 1990. Halvajian claimed *1014 to not have received the letter, which contained an error in its address, and thus to have been unaware of the City's actions as of the date that Group settled with the Debtor, April 13, 1990. It is an understatement to observe that the City's actions in resolving the abatement were disputed. The parties disagreed over the City's authority in reimposing taxes for the years for which the City had earlier granted an abatement for numerous reasons, including a challenge to the constitutionality of the City's actions. As we indicated at page 1012 supra and is described in more detail in Opinion II, supra, 185 B.R. at 985-986, Group was the successful bidder for the Mall at the post-confirmation auction held on April 11, 1995, for a bid price of $7 million. C. DISCUSSION 1. THE CITY'S CLAIMS ARE NOT BARRED BY 11 U.S.C. § 502(b)(3) BECAUSE THE MALL HAS VALUE WHICH EXCEEDS THE CITY'S CLAIMS AND BECAUSE SOME OF THE OBLIGATIONS IN ISSUE ARE POST-PETITION ADMINISTRATIVE OBLIGATIONS WHICH ARE NOT TECHNICALLY "CLAIMS." In an effort to deliver a haymaker to all of the City's claims in issue, the Debtor (but not Group) references 11 U.S.C. § 502(b)(3), which provides as follows, in support of the Objections: (b) Except as provided in subsections (e)(2), (f), (g), (h) and (i) of this section, if such objection to a claim is made, the court, after notice and a hearing, shall determine the amount of such claim in lawful currency of the United States as of the date of the filing of the petition, and shall allow such claim in such amount except to the extent that — . . . . . (3) if such claim is for a tax assessed against property of the estate, such claim exceeds the value of the interest of the estate in such property. The Debtor argues, with simple logic, that the Debtor's equity in the property against which the City's taxes are assessed, i.e., the Mall, is zero. Therefore, it contends, all of the City's tax claims necessarily exceed the value of the interest of the Debtor's estate in the Mall and these claims are all barred by § 502(b)(3). In a lengthy description of the history and purpose behind § 502(b)(3), 3 COLLIER ON BANKRUPTCY, ¶ 502.02[4], at 502-48 (15th ed. 1994) ("Collier"), states that [i]t is designed to prevent depletion of the debtor's estate by the payment of overdue taxes on property which has come into the hands of the trustee despite the fact that such property had no value to the estate and was more frequently than not abandoned to mortgagees, other lienors, or to taxing authorities. The injustice of such payments at the expense of the general unsecured creditors for the benefit of mortgagees or other lienors is clear since the payment of taxes from the estate of the debtor would clear away tax claims which might otherwise have remained charges on the property. The facts of the cases cited by the Debtor in support of the application of § 502(b)(3) are drastically different from the instant case, e.g., In re Spruill, 78 B.R. 766, 767-68 (Bankr.E.D.N.C.1987) (tax claims against property foreclosed prior to the bankruptcy case); and In re Skinner Lumber Co., 35 B.R 31, 31-32 (Bankr.D.S.C.1983) (tax claims against property abandoned by the trustee). Later in the text quoted above, Collier limits the application of § 502(b)(3) by stating, 3 COLLIER, supra, ¶ 502.02[4], at 502-48, that "[i]t should be borne in mind that section 502(b)(3) deals with unsecured claims." Finally, it should be noted that the term "claim," as utilized in § 502 generally, references pre-petition obligations. See, e.g., In re Central R.R. of N.J., 950 F.2d 887, 890-92 (3d Cir.1991); In re M. Frenville Co., 744 F.2d 332, 337 (3d Cir.1984), cert. denied sub nom. M. Frenville Co. v. Avellino & Bienes, 469 U.S. 1160, 105 S.Ct. 911, 83 L.Ed.2d 925 (1985); and In re Farley, 135 B.R. 493, 495-96 (Bankr.E.D.Pa.1992) (all assuming, by implication, that a "claim" must arise pre-petition). *1015 Before applying the foregoing considerations to the Debtor's efforts to invoke § 502(b)(3) here, several observations are pertinent. First, the Objections in issue, filed by Group but merely joined by the Debtor, do not raise § 502(b)(3) as a basis for the relief sought. Nor was the application of § 502(b)(3) raised as an issue during the lengthy hearing. Instead, the arguments based on this Code section appeared for the first time in the Debtor's post-trial brief. While generally Objections to proofs of claim need not be pleaded with great precision, we would be most reluctant to sustain a substantive objection to a proof of claim raised for the first time in briefing, since the claimant, which bears the ultimate burden of proof on the issue of the validity of its claim, See In re Allegheny Int'l, Inc., 954 F.2d 167, 173-74 (3d Cir.1992), would not be placed on notice of what issues it must prove to sustain its claim. Secondly, we note that Group does not cite § 502(b)(3) in support of its Objections, either in its opening brief nor in its reply brief filed after the Debtor argued the application of this Code section. Finally, the Debtor is less than positive in its own arguments referencing § 502(b)(3). In its initial statement in the text of its brief, it states that the taxes at issue "may not be allowable" on the basis of this section (emphasis added), and then proceeds to argue this point for only two pages before turning to other arguments. Applying the considerations referenced in the penultimate paragraph to the facts at hand causes us to reject the application of § 502(b)(3) on its merits. That Code section has been applied only to taxes on incidental property transferred, abandoned, or foreclosed upon prior to bankruptcy. By way of contrast, the Mall is, for all practical purposes, the Debtor's sole asset. Further, the Mall is not without value to the Debtor's estate. It is property worth about $7 million. The estate's interest in the Mall led to the filing of this case and confirmation of the Plan. Lack of equity is not the equivalent of valuelessness. The Mall has a value to the estate well in excess of the City's claims of about $500,000. Moreover, as the City points out in its reply brief, its claim does not benefit secured creditors at the expense of unsecured creditors, who Collier indicates are the targeted beneficiaries of § 502(b)(3). If the City's claims were denied, secured creditors, mainly Group and perhaps BNY, would feed upon what would otherwise be the City's slice of the pie. The City argues that its claims are secured, while § 502(b)(3) deals only with unsecured tax claims. We ultimately conclude, at pages 1018-1019 infra, that none of the City's claims arising from real estate tax delinquencies are in fact secured. However, any of the real estate tax claims, and particularly the 1995 real estate taxes, are subject to being liened in the future, especially since, through the auction sale, transfer of equitable title to the Mall has or will pass to Group. Furthermore, many of the claims in issue were incurred post-petition and are therefore not within the general scope of the term "claim." These post-petition obligations are found by us to be merely administrative "claims," not within the scope of the term "claim" as we believe it is used in § 502(b)(3). Therefore, much of the taxes in issue could not possibly be found to be within the scope of § 502(b)(3). For all of these reasons, we determine the Debtor's invocation of § 502(b)(3) to be off the mark and not useful in attacking the City's claims. 2. ALL OF THE 1988 AND 1989 TAXES, PRE-DATING THE DEBTOR'S PURCHASE OF THE MALL AND BEING UNLIENED, ARE NEITHER PROPERLY CLAIMED AGAINST THE DEBTOR NOR DISCHARGEABLE, BUT RATHER, AS PROPER FARE FOR ABSTENTION IN ANY EVENT, SHOULD BE RESOLVED BETWEEN GROUP AND THE CITY IN ANOTHER FORUM. More convincing are the Debtor's arguments, again not joined by Group because of Group's obvious awareness that the City's claims will be deflected to it if they are sustained as to the Debtor on this basis, that the City's 1988 and 1989 tax claims against *1016 the Mall property, arising from tax years prior to the Debtor's purchase of the Mall, cannot be asserted against the Debtor, but could be asserted against Group. The Debtor correctly argues that personal liability for real estate taxes, while an incident to ownership of land, does not arise when a party is out of ownership. See, e.g., Northumberland County v. Philadelphia & Reading Coal & Iron Co., 131 F.2d 562, 565-67 (3d Cir.1942); Stephens v. Reed, 121 F.2d 696, 698 (3d Cir.1941); Pennsylvania Co. for Insurances on Lives & Granting Annuities v. Bergson, 307 Pa. 44, 49-50, 159 A. 32, 34 (1932); and Theobold v. Sylvestor, 27 Pa.Super. 362, 364 (1905). This state of affairs rarely proves troublesome to taxing authorities in collecting their due, because delinquent taxes, particularly real estate taxes, can be liened. It is quite clear that such tax liens run with the land and can be collected by foreclosing those liens to the detriment of whoever happens to be in title. See, e.g., Steen's Estate, 175 Pa. 299, 301-02, 34 A. 732, 733 (1896); Brundred v. Egbert, 158 Pa. 552, 558, 28 A. 142, 143 (1893); and 36 P.L.E. 261 (1961). O'Donnell testified that the 1988 and 1989 taxes were first liened in October 1990, after the Debtor acquired title to the Mall. If the Debtor were still the equitable owner of the Mall, or if it had a duty to an innocent transferee at the auction sale to satisfy all outstanding liens against the Mall, the incidence of personal liability for the taxes would not be of great significance. The Debtor would probably still be liable for these taxes in those events. However, the owner of the Mall in 1988 and 1989, and therefore the party personally liable for any taxes due for these tax years, was Group. Fortuitously for the City and the Debtor alike, Group was the successful purchaser at the auction sale. It is difficult to understand how any duty could fall upon the Debtor to clear off tax liens arising prior to its ownership as to Group, when Group itself is personally liable for these taxes and had earlier passed the title of the Mall to the Debtor with such claims arguably attached. Certainly, Group is not an innocent purchaser of the Mall which, for that reason, could take title to the Mall free and clear of the City's 1988-89 tax claims. The bottom line of the foregoing is that, whatever tax liability exists for any 1988 or 1989 real estate taxes due on the Mall, it should fall on Group, not the Debtor. As a result, the question of liability for these taxes raises issues which should and can be resolved between Group and the City alone. We disagree with the City's suggestion that this court lacks jurisdiction to decide the issues raised in the Objections because these issues were not previously raised before appropriate administrative appellate tax bodies. Subject to its discretion to abstain, this bankruptcy court, by reason of 11 U.S.C. § 505, has been accorded the power to decide tax disputes, irrespective of whether the Debtor exhausted any available administrative remedies. See In re AWB Associates, 144 B.R. 270, 275-78 (Bankr.E.D.Pa. 1992). However, in AWB, supra, id. at 276, this court, citing In re Galvano, 116 B.R. 367, 372 (Bankr.E.D.N.Y.1990), thusly recited the factors which a bankruptcy could should consider in deciding whether to in fact proceed to determine a particular tax dispute: (1) the complexity of the tax issue to be decided; (2) the need to administer the bankruptcy case in an orderly and efficient manner; (3) the burden on the bankruptcy court's docket; (4) the length of time required for trial and decision; (5) the asset and liability structure of debtors; and (6) any prejudice or potential prejudice to both the debtor and taxing authority. Apart from the context of when it should exercise its § 505 powers, a bankruptcy court should generally refrain from deciding any issues which constitute disputes between creditors which will have little, if any, effect on the administration of the debtor's case. See In re Selig, 135 B.R. 241, 243-45 (Bankr.E.D.Pa.1992); and In re City Wide Press, Inc., 107 B.R. 68, 70-72 (Bankr. E.D.Pa.1989). The lack of a need to decide an issue involving taxes to administer a debtor's estate is one of the factors to be considered in deciding whether to exercise jurisdiction under § 505. See AWB, supra, 144 B.R. *1017 at 276. We find that the dispute about the 1988-89 taxes is, in essence, a dispute between Group and the City which they can and should litigate elsewhere. Other considerations point to resolution of the 1988-89 real estate tax dispute between Group and the City in another forum. The issues presented in determining whether the tax abatement on the Mall was justifiably rescinded are difficult and complex issues. In light of the absence of citation to authority directly on point by any interested parties, these issues also appear to constitute issues concerning which the outcome is uncertain, and which are of great potential importance to the fragile tax base of the City. Such considerations counsel not only against the exercise of § 505-like powers, see AWB, supra, 144 B.R. at 276, but also support exercising discretionary abstention against deciding these issues generally. See In re Stephen Smith Home for the Aged, Inc., 80 B.R. 678, 680-87 (E.D.Pa.1987); and In re West Coast Video Enterprises, Inc., 145 B.R. 484, 488 (Bankr.E.D.Pa.1992). Cf. In re Cloverly Associates, L.P., 1993 WL 63460 (Bankr. E.D.Pa. March 3, 1993) (court sua sponte abstains from deciding an issue of local land use, even though that issue definitely did involve the debtor). The issue of the Debtor's liability for the 1988-89 BU & O taxes is fraught with similar considerations. In her testimony, City witness Arthur stated that "[t]he new owner is not obligated to pay the prior owner's responsibilities" for BU & O taxes. Therefore, again, Group appears to be the proper target for the City's collection efforts, as the "prior owner" during accrual of the 1988-89 BU & O taxes, not the Debtor. While this issue of liability for 1988-89 BU & O taxes may not be as complex as the question of liability for the 1988-89 real estate taxes, it is equally insignificant to the administration of the Debtor's case. The determination of this issue, too, should therefore be left for Group and the City to thrash out between themselves in another forum. Therefore, with the caveat that this court is in no sense discharging Group from liability for same, we will proceed to sustain the Objections to each of the 1988-89 tax liabilities asserted by the City against to the Debtor.[2] 3. THE REMAINING PRE-PETITION CLAIMS OF THIS CITY ARE PROPERLY CLASSIFIED AS UNSECURED PRIORITY CLAIMS; MOST OF THE POST-PETITION CLAIMS ARE PROPERLY CLASSIFIED AS ADMINISTRATIVE CLAIMS; BUT THE CITY IS ENTITLED TO HAVE THE 1995 REAL ESTATE TAXES TREATED AS A NONDISCHARGEABLE, POST-PETITION AND POST-CONFIRMATION EXPENSE. The City initially claims that, in light of O'Donnell's testimony that it "liened" the 1993 and 1994 real estate taxes in February 1994, and February 1995, respectively, both the 1993 and 1994 real estate tax claims are properly classified as secured claims. The Debtor and Group both argue that, since the City did not obtain relief from the automatic stay prior to entry of the liens, the liens are void and the tax claims for both years in issue are unsecured priority claims. We find that this position of the objecting parties is, for the most part, correct. The first issue to be determined is when the Debtor's obligations to pay the real estate taxes in issue were incurred. The time when a tax is incurred is established by the law of the governmental taxing authority in issue. See In re Columbia Gas Transmission Corp., 37 F.3d 982, 984 (3d Cir.1994), cert. denied sub nom. West Virginia State Dep't of Tax v. Internal Revenue Service, ___ U.S. ___, 115 S.Ct. 1793, 131 L.Ed.2d 721 (1995); and Equibank, N.A. v. Wheeling-Pittsburgh Steel Corp., 884 F.2d 80, 84 (3d Cir.1989). As argued by the City, the pertinent local ordinance, PHILADELPHIA, PA., CODE ("CODE"), § 19-1303(2), provides *1018 that real estate taxes for a particular tax year are first assessed and payable, without discounts, in March of the year for which the tax is due. Therefore, it appears logical to conclude that the annual real estate taxes for a particular year are incurred on March 31 of that year. Group, in its submissions, also accepts the March 31 date as the date on which real estate taxes are incurred. The Debtor appears to argue that taxes are incurred in January; however, since it fails to recite any authority to do so, we will accept the March date proposed by the other parties. The 1993 real estate taxes therefore were incurred pre-petition, on March 31, 1993. The 1994 real estate taxes were incurred on March 31, 1994, during the course of the Debtor's bankruptcy. The 1995 real estate taxes, becoming due on March 31, 1995, were incurred post-confirmation. Although the City purports to have secured the 1993 real estate by filing a lien for these taxes in February 1994, it is clear that the automatic stay provision of the Bankruptcy Code prevents perfection of a lien post-petition, while the stay is still in effect. Specifically, 11 U.S.C. § 362(a)(4) provides that a bankruptcy filing "operates as an automatic stay applicable to all entities, of — . . . (4) any act to create, perfect, or enforce any lien against the property of the estate; . . ." It is well established that the entry of a tax lien securing a post-petition tax liability, as well as the post-petition entry of a lien securing a pre-petition tax liability, violates the automatic stay. See In re C.S. Associates, 29 F.3d 903, 905 (3d Cir.1994); Makoroff v. City of Lockport, 916 F.2d 890 (3d Cir.1990), cert. denied, 499 U.S. 983, 111 S.Ct. 1640, 113 L.Ed.2d 735 (1991); Equibank, supra, 884 F.2d at 83-85; In re Building Technologies Corp., 167 B.R. 853, 857 (Bankr.S.D.Ohio 1994) (automatic stay prevents acquisition of a valid lien, post-petition, by a taxing authority); In re Eastern Steel Barrel Corp., 164 B.R. 477, 479 (Bankr. D.N.J.1994); In re Erie Hilton Joint Venture, 125 B.R. 140, 147 (Bankr.W.D.Pa.1991) (Section 362 prevents the creation of a lien for post-petition real estate taxes while the automatic stay is in effect); and In re Trowbridge, 74 B.R. 484, 485 (Bankr.E.D.Pa.1987) (Section 362(a) prevents taxing authorities from asserting liens for post-petition taxes). The 1993 real estate taxes therefore cannot be classified as secured claims. Post-petition real estate tax claims which have not attained lien status, such as these claims, may be allowed either as an administrative expense pursuant to 11 U.S.C. § 503(b)(1)(B)(i) and receive first priority through 11 U.S.C. § 507(a)(1), or receive seventh priority under § 507(a)(7)(B).[3] The City would appear to be on sounder ground with respect to its claim that the indebtedness for the 1994 real estate taxes is secured. The confirmation of the Debtor's Plan on January 17, 1995, would ordinarily terminate the automatic stay as of that date. See 11 U.S.C. §§ 1141(b), (d)(3), 362(c)(2)(C). However, the Debtor's confirmed Plan expressly provides that, "[p]ending the closing of the case . . ., the stay imposed by the presence of Section 362 of the Bankruptcy Code shall remain in effect." Therefore, as of the date that the City purported to record its lien for the 1994 real estate taxes in February 1995, the automatic stay remained in effect and the lien entered by the City against the Debtor with respect to the 1994 taxes was void. Hence, the claims of the City based upon 1994 real estate taxes, like those based upon the 1993 real estate taxes, cannot be classified as secured, although they may be classified as either administrative or seventh priority claims under § 507(a)(7)(B). Since the 1993 real estate taxes were incurred pre-petition, there is little question that they are properly classified as seventh priority claims, pursuant to § 507(a)(7)(B). The proper classification of the 1994 real estate taxes is less obvious. *1019 At first blush, it seems very improbable that obligations which, like the 1994 real estate taxes, were incurred post-petition could, on any basis, be classified together with pre-petition claims. In fact, the position of not only the City but also Group is that they are administrative claims. However, the Debtor contends that the 1994 real estate taxes are in fact seventh priority claims under § 507(a)(7)(B) as well, basing its argument upon application of 11 U.S.C. § 502(i), which provides as follows: A claim that does not arise until after the commencement of the case for a tax entitled to priority under section 507(a)(7) of this title shall be determined and shall be allowed under subsection (a), (b), or (c) of this section, or disallowed under subsection (d) or (e) of this section, the same as if such claim had arisen before the date of the filing of the petition. The Debtor argues, with a simplicity reminiscent of its arguments based on § 502(b)(3), see page 1014 supra, that the 1994 real estate taxes, although arising after the commencement of this case, are entitled to a § 507(a)(7) priority, and therefore should be treated the same as if this claim had arisen pre-petition. The Debtor contends that several courts have agreed with this reading of § 502(i) and have accordingly refused to recognize tax claims arising post-petition as administrative expenses, e.g., Trowbridge, supra, 74 B.R. at 486 n. 2; In re Kamstra, 51 B.R. 826 (Bankr.W.D.Mich. 1985); In re Carlisle Court, Inc., 36 B.R. 209, 217-18 (Bankr.D.D.C.1983); and In re New England Carpet Co., 26 B.R. 934, 937-38 (Bankr.D.Vt.1983). None of these authorities support the proposition that § 502(i) converts what would otherwise be a post-petition, administrative, first-priority tax claim into a seventh-priority claim. In Trowbridge, Judge Fox, we think accurately, notes that "[s]ome courts [citing Carlisle Court] have held that postpetition taxes which are not administrative expenses, but which are of a kind described by § 507(a)(7), are prepetition priority claims by virtue of § 502(i)." 74 B.R. at 486 n. 2 (emphasis added). Carlisle Court holds to the contrary of the Debtor's proposition. The taxes in issue there were found to be entitled to administrative priority and therefore not within the scope of § 502(i). 36 B.R. at 214-18. In Kamstra, the court considered taxes assessed and last payable without penalty pre-petition which were not classifiable as administrative claims. 51 B.R. at 833. New England Carpet also involved taxes assessed pre-petition. 26 B.R. at 940. We previously concluded that the 1994 real estate taxes were incurred post-petition. See page 1018 supra. These taxes are therefore post-petition taxes which are not, in the language of § 502(i), "entitled to priority under section 507(a)(7)." Therefore, § 502(i) does not apply to these taxes. See In re Gould & Eberhardt Gear Machinery Corp., 69 B.R. 944, 946 (Bankr.D.Mass.), rev'd on other grounds, 80 B.R. 614 (D.Mass.1987) (§ 502(i) applies only to situations where events giving rise to a tax occur pre-petition, but the dollars taxed are received post-petition, disagreeing with New England Carpet that merely the pre-petition date of assessment triggers § 502(i)), and other cases cited therein. The logical intention of the Debtor's argument would be that all taxes classifiable under § 507(a)(7), if pre-petition, including all real estate taxes within the scope of § 507(a)(7)(B), could never be classified as administrative claims. This is clearly not the case, since § 503(b)(1)(B) expressly provides that any tax incurred by the estate, except the type specified in § 507(a)(7), is to be treated as an administrative expense. See Equibank, supra, 884 F.2d at 86; Erie Hilton, supra, 125 B.R. at 148; Trowbridge, supra, 74 B.R. at 485; and 3 COLLIER, supra, ¶ 503.04, at 503-36. As to the reference to § 507(a)(8) in § 503(b)(1)(B)(i), quoted at page 1022 infra, Collier explains that "the reference in section 503(a)[b](1)(B)(i) to section 507(a)(8) means [only] that to the extent a debtor's pre-petition liability becomes a tax claim after the petition, it is not for that reason alone to be given administrative expense status." 3 COLLIER, supra, ¶ 503.04, at 503-39. Thus, as in the case of the Debtor's invocation of § 503(b)(3), we conclude that the Debtor's attempt to broaden the application *1020 of § 502(i) to apply to all of the City's tax claims must fail. We therefore conclude that the 1994 real estate tax liabilities in issue are properly classified as an administrative "claims" entitled to first priority. The 1995 real estate tax liability is not only a post-petition "claim," it is a post-discharge "claim." While the City might have available the option of asserting this obligation as an administrative claim, it has expressed a desire to forego this option and to have the 1995 real estate tax claim "treated" as a nondischargeable post-confirmation indebtedness. We believe that this is an option which is open to the City. The City may enter a lien for the 1995 taxes, or any of the taxes for prior years, after obtaining relief from the automatic stay. However, obtaining relief at this juncture to enter such a lien, particularly as to the 1995 taxes, may not be difficult, as in the case of BNY's readily obtaining relief to proceed with its state court remedies against the Debtor in an Order of this court of July 19, 1995. If and when it does so, any lien subsequently entered would become a lien against the Mall in the hands of Group, presently the equitable owner and soon to become the legal owner of the Mall. The amount of principal, interest, and penalties for the 1995 taxes therefore will dissolve into a dispute between the City and Group, similar to the controversy concerning the 1988 and 1989 taxes. Perhaps because the amounts involved are less than those of the real estate taxes, the parties devote considerably less attention to the resolution of the status and amount of the BU & O taxes than to the status and amount of the real estate taxes in issue. We already concluded, at page 1017 supra, noting also the concurrence of the City's own witness Arthur, that the 1988 and 1989 BU & O taxes, like the other taxes arising prior to the Debtor's purchase of the Mall, are not chargeable to the Debtor. Liability for the BU & O taxes is likewise more properly relegated to the series of tax disputes between the City and Group to be resolved in another forum than it is a subject to be considered by this court in the course of administration of the Debtor's bankruptcy case. There appears to be no dispute that the BU & O taxes are incurred on a monthly basis, and therefore accrue at the end of the month that they are unpaid. The City does not claim any liens securing these taxes. The parties do disagree, however, about the nature of the BU & O taxes. Group and the Debtor assume that they are taxes within the scope of 11 U.S.C. § 507(b)(7)(C), which includes "a tax required to be collected or withheld and for which the debtor is liable in any capacity." The City, meanwhile, attaches an ordinance from the CODE, § 19-1806, which it claims takes the BU & O taxes out of the scope of § 507(b)(7)(C) because the said taxes are imposed directly on property owners if they fail to collect them from their tenants. See CODE, 19-1806(5)(b). However, there is no dispute that the BU & O taxes are to be collected from tenants by landlords, as agents for a local taxing authority. Id. Rather than not falling within the scope of § 507(a)(7)(C) because landlords may be liable if the BU & O taxes payable by their tenants are unpaid, § 507(b)(7)(C) applies only in the case of taxes for which the debtor is potentially liable, "in any capacity whatever." The only other prerequisite of § 507(b)(7)(C) taxes is that they be collected by the debtor for the taxing authority in any manner. Certainly, the BU & O taxes are collectible for the City by the Debtor, as well as being subject to being imposed upon the Debtor. Therefore, the dual elements that the debtor make collection of taxes for a local taxing authority and the incidence of the debtor's own potential liability of the taxes are unpaid are both features of the BU & O taxes, and place them squarely within the scope of § 507(b)(7)(C). The City contends that post-petition BU & O claims are entitled to be classified as administrative, first priority claims under 11 U.S.C. §§ 503(b)(1)(B)(i), 507(a)(1) simply because the BU & O taxes are not within the scope of § 507(b)(7)(C). Interestingly, the City argues that its pre-petition BU & O taxes are somehow entitled to a § 507(a)(7) priority, never explaining how this can be so if BU & O taxes are not within the scope of § 507(a)(7)(C). We believe that, if we accepted the City's argument that the BU & O *1021 taxes were not within the scope of § 507(b)(7)(C), the City would be placing itself in a worse position, because pre-petition BU & O tax liabilities of the Debtor would then have to be properly classified as general unsecured claims. Group again concedes that post-petition BU & O taxes are administrative claims, although it asserts that the pre-petition BU & O taxes are within the scope of § 507(a)(7)(C). However, the Debtor argues that all of the BU & O taxes are properly classified as seventh priority claims under § 507(a)(7)(C), again basing its argument upon § 502(i). As we indicated at page 1019 supra, we found no merit in the Debtor's argument that § 502(i) rendered the City's 1994 real estate tax claims properly classifiable as seventh priority claims pursuant to § 507(a)(7)(B), as opposed to administrative claims. It is consistent with this result to refuse the Debtor's invitation to classify the post-petition BU & O taxes as seventh priority claims under § 507(a)(7)(C). We therefore again reject the Debtor's argument, and we will proceed to classify all of the City's claims as administrative, first-priority claims except the 1995 real estate taxes, which are not classified at all, but are labelled, at the City's request, as nondischargeable, post-confirmation obligations, apparently chargeable to Group. 4. PURSUANT TO THE PROVISIONS OF THE CONFIRMED PLAN, THE CITY IS ENTITLED TO "FULL" PAYMENT OF ITS PRIORITY AND ADMINISTRATIVE CLAIMS, WHICH INCLUDES INTEREST TO DATE ON ALL CLAIMS EXCEPT THE 1993 REAL ESTATE TAX CLAIMS, REGARDING WHICH INTEREST IS TO CEASE ON AUGUST 15, 1994. There is some conflict in the authorities as to what increments to the tax principal a taxing authority asserting seventh priority claims is entitled. The pertinent statutory provision, 11 U.S.C. § 507(a)(7)(G), limits the increments to "a penalty related to a kind specified in this paragraph and in compensation for actual pecuniary loss." We agree with the conclusion of the court in In re Garcia, 955 F.2d 16, 18-19 (5th Cir.1992), that interest is a penalty imposed in compensation for actual pecuniary losses, and hence is collectible under § 507(a)(7)(G), but that additional penalties otherwise collectible, not being such compensation, are accordingly barred by § 507(a)(7)(G). The Debtor and Group both cite In re TOC Associates, 181 B.R. 205, 208-09 (Bankr. E.D.Pa.1995) (FITZGERALD, J.), for the principle that even a penalty for a pecuniary loss, and particularly interest, is not collectible if the interest accrued post-petition. However, this conclusion of the TOC court is apparently based upon its reading of the confirmed plan in that case as providing for interest on pre-petition tax claims only. Id. The instant Plan appears more generous to the City than the plan at issue in TOC. With respect to Class 2 claims, which include the BU & O tax claims, when stripped of the surplusage relating to unachieved settlements, see page 1012 supra, the Plan provides that "[a]ll class 2 Allowed Claims shall be paid in full in Cash on the Effective Date or as soon as practicable thereafter." Again eliminating language relating to hoped-for but unconsummated settlements, the Plan provides, as to Class 3 claims, which embrace the real estate tax claims in issue, see page 1012 supra, that "real estate taxes will be paid in full in Cash on the Effective Date," with the exception of a particular provision relative to 1993 real estate tax claims. That provision expressly provides for interest on the 1993 real estate tax claims, but, for reasons not apparent to the court, cuts off its accrual as of August 15, 1994. Two cases interpreting plan provisions which similarly provide for payment of seventh priority tax claims "in full," noting that plan ambiguities are interpreted against the debtor-draftsperson, cf. In re St. Mary Hospital, 155 B.R. 345, 348-49 (Bankr.E.D.Pa. 1993) (plans are construed as contracts; thus, alleged ambiguities in plans are interpreted by the same principles as are utilized in interpretation of alleged ambiguities in contracts), hold that seventh priority tax claimants are entitled to interest. In re Arrow Air, Inc., 101 B.R. 332, 334-35 (S.D.Fla. *1022 1989); and In re Collins, 184 B.R. 151, 154-56 (Bankr.N.D.Fla.1995). Compare United States v. White Farm Equipment Co., 157 B.R. 117, 122 (N.D.Ill.1993) (interest denied where plan "explicitly defines an `allowed claim' as not including any interest"). Therefore, we conclude that, except as to the 1993 real estate tax claims accruing after August 15, 1994, the City is entitled to interest on all of its seventh priority claims. The agreement of the Debtor, per the Plan, to pay the City's tax claims "in full" except as to post-August 15, 1994 interest on the 1993 real estate tax claims, also causes us to accept the City's calculation of the principal as including the "additions" to the discounted and base amounts of the real estate taxes as provided in the CODE, § 19-1303(3). It is only the "additional penalty" of one (1%) percent per month during the first year of delinquency, referenced in § 19-1303(4)(c), which we believe is excluded by the combined application of § 507(a)(7)(G) and the Plan. There is also a conflict in the authorities as to what increments to the tax principal a taxing authority asserting a first-priority, administrative claim is entitled. The pertinent statutory authorities in this instance are §§ 503(b)(1)(B)(i), (b)(1)(C), which provide, in pertinent part, as follows: (b) After notice and a hearing, there shall be allowed administrative expenses, . . ., including — (1)(A) . . . . . . . . (B) any tax — (i) incurred by the estate, except a tax of a kind specified in section 507(a)(8) of this title; . . . (C) any fine, penalty, or reduction in credit relating to a tax of a kind specified in subparagraph (B) of this paragraph; . . . The conflict arises as to whether interest, which is not enumerated in § 503(b)(1)(C), is therefore excluded. When juxtaposed within § 507(a)(7)(G), which logically allows interest but not additional penalties to seventh priority claimants, it seems illogical to grant administrative first priority claimants penalties and fines, which are additions to interest, but not interest itself. Despite the anomaly created by disallowing interest to administrative claimants, and the presence of ample authority that interest is allowable to administrative claimants, particularly tax claimants, see, e.g., In re Colortex Industries, Inc., 19 F.3d 1371, 1374-84 (11th Cir.1994); In re Flo-Lizer, Inc., 916 F.2d 363, 366-67 (6th Cir.1990); In re Mark Anthony Construction, Inc., 886 F.2d 1101, 1108 (9th Cir.1989); In re Allied Mechanical Services, Inc., 885 F.2d 837, 839 (11th Cir. 1989); United States v. Friendship College, Inc., 737 F.2d 430, 432-33 (4th Cir.1984); and In re F.A. Potts & Co., 114 B.R. 92, 93-94 (Bankr.E.D.Pa.1990) (TWARDOWSKI, J.), this court, in In re American Int'l Airways, Inc., 77 B.R. 490, 494-95 (Bankr. E.D.Pa.1987), stated, in dicta, that the omission of interest as an allowable aspect of an administrative claim from § 503(b) strongly suggested that interest should ordinarily be excluded as an appendage to an administrative claim. Accord, In re Luker, 148 B.R. 946, 949-53 (Bankr.N.D.Okla.1992). The issue of whether interest is generally collectible by an administrative claimant, in the absence of the directives from the terms of a confirmed plan, is an issue we need not squarely confront here. As noted from our discussion at page 1021 supra, the instant confirmed Plan contemplates payment of all Class 2 and Class 3 claims "in full." We are not inclined to read § 503(b)(1)(C) as an absolute bar to collection of interest to administrative claimants, as is the bar on penalties imposed by § 507(a)(7)(G) as to seventh priority claimants. Therefore, we conclude that the City is entitled to interest as well as penalties on account of its administrative 1994 real estate tax and post-petition BU & O tax claims under the terms of the Plan at issue here. 5. CALCULATION OF THE CITY'S CLAIMS. In calculating the precise sums of the City's claims, we begin from the general observation that O'Donnell and Arthur, the City's witnesses regarding the amount of the real estate taxes and BU & O taxes owed, *1023 respectively, were candid and even-handed, and hence highly credible in their presentations. No adverse witnesses, except, to a limited degree, Krouk, were presented to rebut their testimony. In fact, all of the witnesses for the objectors except Krouk, and he only in small part, focused on one issue which we ultimately find unnecessary to decide, i.e., the alleged impropriety of charging the 1988 and 1989 tax claims against the Debtor. See pages 1015-1017 & n. 2 supra. Moreover, Krouk disclaimed any hypothesis of his own as to the amount which the taxes should be, testifying only as to the BU & O taxes and noting that Arthur had sat down with him and agreed to make adjustments as a result of their discussion. Arthur, meanwhile, testified that she had indeed made adjustments after meeting with Krouk and that the resulting figures were those asserted by the City as adjusted. Given the reasonableness of the City's approach, we find ourselves inclined to accept the figures proffered by O'Donnell and Arthur as accurate, except where proven inaccurate and subject to necessary adjustment. As to the 1993 real estate taxes, we will therefore begin with the $132,062.02 figure cited as "principal" by O'Donnell. The City proposes addition of interest totalling $13,206.20 through August 1, 1995, which is the amount which would accrue if interest at half of one (½%) percent per month, pursuant to CODE § 19-1303, were accrued for twenty (20) months. However, the accrual of penalty over the twelve (12) months after August 1994 has been effectively taken from the City by the applicable Plan provision. Therefore, this amount must be reduced by half of one (½%) percent per month for twelve (12) months, or by $7,923.72. The charge to record the said lien must also be deducted, since no liens could validly be recorded due to the presence of the automatic stay. The 1993 real estate tax claim therefore nets at $132,062.02, plus $13,206.20 less $7,923.72, or $137,344.50. As to the 1994 real estate taxes, we will allow the full amount of principal, interest, and penalty claimed, deducting only a $20 lien recording charge from the total sought. The 1994 real estate tax liability is therefore allowed in the amount of $145,588.84. Calculation of the BU & O taxes due requires somewhat more mathematical calculations, but is relatively simple to formulatize. We will allow, as principal, all "tax due" from April 1990 and thereafter, which by our calculation comes to $60,580.48. Of this amount, per our calculations, $38,691.09 of principal fell due from September 1993 forward, and the remainder of $21,889.39 fell due between April 1990 and August 1993. Arthur testified that the sum referenced as "interest" on the City's BU & O records was actually one-third interest and two-thirds penalty. Hence, for the period from April 1990 through August 1993, representing the pre-petition BU & O tax liability, two-thirds of the interest claimed is properly classifiable as a non-compensable "penalty" which is excluded from collection by § 507(a)(7)(G). We will therefore allow the City one-third of all of the "interest" claimed on its records which fell due in the period between April 1990 and August 1993. This figure comes to $5,715.46 according to our calculations. The entire amount of "interest" claimed from September 1993 and thereafter, which we calculate to be $4,616.58, is also payable under the terms of the Plan and § 503(b)(1)(C). We will therefore allow the City $27,604.85 as a seventh priority claim and $43,307.67 as a first priority administrative claim, a total of $70,912.52, on account of its BU & O tax claims. D. CONCLUSION An Order consistent with the conclusions and calculations presented hereinbefore will be entered. ORDER AND NOW, this 31st day of August, 1995, after a hearing of July 19, 1995, on the Objections of Mall at One Group, L.P. ("Group") to Proofs of Claim Nos. 2 and 3 ("the Objections") filed by the City of Philadelphia ("the City"), joined by the Debtor and the Bank of New York — National Community Division, and attempted to be joined by First American Title Insurance Co., it is *1024 hereby ORDERED AND DECREED as follows: 1. The Objections are SUSTAINED in part. 2. The City is allowed priority claims, in the following amounts: a. $137,344.50 on account of 1993 real estate taxes, pursuant to § 507(a)(7). b. $145,588.84 on account of 1994 real estate taxes, pursuant to § 507(a)(1). c. $27,604.85 on account of business occupancy and use ("BU & O") taxes accruing between April 1990 and August 1993, pursuant to § 507(a)(7). d. $43,307.67 on account of BU & O taxes accruing between September 1993 and the present, pursuant to § 507(a)(1). 3. All claims for taxes accruing prior to April 1990 and the claims for 1995 real estate taxes are excluded, it appearing that such claims are more appropriately asserted by the City against Group directly in other forums. NOTES [1] The water and sewer liability was, as far as we can tell, never mentioned in the hearings and briefs. The City did not include this claim among the amounts recited in its reply brief despite the request for any such designation in our Order of August 8, 1995. See page 1013 infra. We therefore assume that these charges have either been paid or the City has for some other reason abandoned them. [2] This resolution eliminates our need to evaluate most of the hearing testimony presented by Group or to decide the several issues argued in the parties' briefs relative to the 1988-89 real estate tax liability, including the propriety of Weinstein's testimony and all of the issues raised by Weinstein in his testimony, as well as the constitutionality of the City's procedures in terminating these tax abatements and such abatements generally. [3] The addition of a new 11 U.S.C. § 507(a)(7), creating a priority for support and alimony obligations, in the Bankruptcy Reform Act of 1994 ("the BRA") caused the previous § 507(a)(7) to be renumbered as § 507(a)(8). Since the filing of this case preceded the enactment of the BRA, the pre-BRA version of the Code remains in effect and thus we cite the present § 507(a)(8) as § 507(a)(7) herein.

23 B.R. 56 (1982) In re FLYING S LAND & CATTLE COMPANY, INC., a California Corporation, Debtor. In re DOMICILES, INC., a California Corporation, Debtor. Bankruptcy Nos. LA-80-08798(CA), LA-81-03055(CA). United States Bankruptcy Court, C.D. California. September 2, 1982. *57 Lawrence A. Diamant, Robinson, Wolas & Diamant, Los Angeles, Cal., Trustee. Robert M. Yaspan, Yaspan & Goch, Sherman Oaks, Cal., for Domiciles. Jay L. Michaelson, Michaelson & Susi, Santa Barbara, Cal., for Flying S, etc. James T. Eichstaedt, Los Angeles, Cal., United States Trustee. Quinlan J. Shea, Jr., Andrea J. Winkler, Barbara G. O'Connor, Washington, D.C., for the Executive Office of the United States Trustees. Edward S. Szukelewicz, Washington, D.C., for Administrative Offices, United States Courts. MEMORANDUM OF DECISION CALVIN K. ASHLAND, Bankruptcy Judge. In each of these Chapter 11 cases Lawrence A. Diamant was the trustee. The problems of each debtor were resolved and each debtor requested dismissal of its case. The debtors each agreed to the payment of a fee to the trustee. In Flying S Land & Cattle Company, Inc. it was $5,000; in Domiciles, Inc. it was $1,000. The Administrative Office of the United States Courts contends the fees should be $533.93 and $67.21, respectively, these amounts being the statutory maximum allowed by 11 U.S.C. § 326(a) which permits the court to allow reasonable compensation not to exceed stated percentages "upon all moneys disbursed or turned over in the case by the trustee to parties in interest, excluding the debtor..." The Director of the Administrative Office of the United States Courts and the Executive Office for the United States Trustees, United States Department of Justice, submitted amicus curiae memoranda. The Executive Office's memorandum supports the position of the trustee. The trustee in each case was not idle. In Flying S there was a 3,600 acre parcel of real property located on the coastal plane north of Santa Barbara near the Ronald Regan ranch. The property was subject to foreclosure. The only income was monthly rental payments of $2,500 from an avocado farming operation on the property. The trustee resolved a dispute between the debtor and John Travolta who had purchased part of the debtor's property before the bankruptcy proceedings. Resolution of the dispute concerning boundary location was necessary in order to sell the remaining property. The trustee forestalled foreclosure, and the property was sold for $12 million. The buyer preferred to close the transaction with a seller outside of bankruptcy. There were no unsecured creditors. At the hearing on dismissal, the debtor supported the fee of $5,000 for the trustee as being merited by the time, effort, and success of the trustee. In Domiciles, the president of the debtor was incarcerated and unable to manage the affairs of the debtor. The debtor's interest in one of two parcels of property was sold to the creditor seeking foreclosure. The trustee concluded the sale, negotiated the form and contents of the documents evidencing the transaction, and received the consideration paid the debtor. Again, there were no unsecured creditors. The debtor asked the trustee to support a dismissal and supported the fee to the trustee. The value of the property was scheduled as $835,000. Bankruptcy Code § 326(a) was meant to exclude the recovery of compensation to the trustee only on exempt property returned to the debtor. Under the Bankruptcy Act *58 § 48, the trustee's commission was computed on "all moneys disbursed or turned over to any person, including lienholders." The legislative history of § 326(a) explains the basis for the maximum compensation to the trustee but does not give the rationale for the computation based upon moneys disbursed "to parties in interest, excluding the debtor..." H.R.Rep.No.595, 95th Cong., 1st Sess. (1977) at 327, U.S.Code Cong. & Admin.News 1978, pp. 5787, 6283. In reality, § 326(a) does not change prior law, except as to percentage, bases of compensation, and deletion of a minimum fee. A different interpretation would prevent the Code trustee from being compensated for the same services performed by an Act trustee. Under § 541 the debtor's exempt property becomes part of the estate. Under the Bankruptcy Act it did not. The phrase "excluding the debtor" in § 326(a) protects the debtor's exempt property from diminution because it is not a base upon which compensation can be computed. The limitations on trustee compensation in § 326(a) should not apply when funds are returned to the debtor because of a dismissal. Where the trustee has rendered services the debtor will be unjustly enriched, upon dismissal, unless the trustee is compensated. Bankruptcy courts have exercised their powers by conditioning the return of property to the debtor upon payment of compensation to the trustee. In re Rennison, 13 B.R. 951 (Bkrtcy.W.D.Ky.1981); In re Wolfe, 12 B.R. 686 (Bkrtcy.S.D.Ohio 1981); In re Hendricks, 11 B.R. 48 (Bkrtcy.D.Mo. 1981). Under § 349(b) "[u]nless the court, for cause, orders otherwise, a dismissal ... (3) revests the property of the estate in the entity in which such property was vested immediately before the commencement of the case ..." It is by operation of law rather than any action in the case that revests property in the debtor. Similarly, under § 348(c) upon conversion the service of any trustee serving in the case prior to conversion is terminated. The distribution the trustee makes is by operation of law incidental to the conversion not in the case itself. Where there is a surplus estate, generated by the efforts of the trustee but not claimed because creditors have not filed proofs of claim, it would be unfair to reward the debtor and not compensate the trustee. The words "excluding the debtor" in § 326(a) could not have been intended not to compensate a trustee in these situations. The compensation in Flying S and Domiciles is reasonable in each case and should be allowed. A separate order will be entered.

16 F.3d 419NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order. Segunda M. IGNACIO, Petitioner,v.MERIT SYSTEMS PROTECTION BOARD, Respondent. No. 93-3253. United States Court of Appeals, Federal Circuit. Nov. 24, 1993. Before RICH, ARCHER, and MAYER, Circuit Judges. DECISION PER CURIAM. 1 Segunda M. Ignacio petitions for review of the September 25, 1992 initial decision of an Administrative Judge (AJ), Docket No. SE-0831-92-0308-I-1, which dismissed as untimely filed Ignacio's appeal of a final decision issued by the Office of Personnel Management (OPM) on January 29, 1991 denying her application for a survivor annuity under the Civil Service Retirement System (CSRS). The AJ's decision became the final decision of the Merit Systems Protection Board (Board) on January 14, 1993, when the Board denied review of the AJ's decision. We affirm. DISCUSSION 2 In its final decision, OPM clearly informed Ignacio that there was a twenty-five day time limit for filing an appeal of OPM's final decision to the Board. OPM also provided Ignacio with instructions for filing such an appeal. Ignacio did not appeal OPM's final decision to the Board, however, until May 29, 1992, approximately over one year and three months after the twenty-five day time limit for doing so. 3 Upon receipt of Ignacio's untimely appeal, the AJ informed her in an Order dated June 15, 1992 that she had the burden of proof on timeliness. The AJ ordered her to file "evidence and argument showing that [her] appeal was timely filed or that good cause existed for the delay." Because Ignacio failed to set forth any explanation regarding her delay in appealing OPM's final decision in her response to this Order, the AJ dismissed her appeal as untimely. In her petition for review of the AJ's decision, dated May 5, 1992, Ignacio belatedly argued that her untimely filing was excusable because there were probably mail delays and because Filipino claimants were provided with poor assistance by OPM and the Board. Given that she had not raised these arguments previously, the Board justifiably denied review of her petition and adopted the AJ's decision as the final decision of the Board. 4 In her petition to this court, Ignacio fails to provide any explanation regarding her one year and three month untimeliness in filing her appeal. Instead, she merely sets forth arguments as to the merits of her entitlement to a survivor annuity. We note, however, that this court is faced with the narrow issue of whether the AJ erred in dismissing Ignacio's appeal for untimeliness, Rowe v. Merit Sys. Protection Bd., 802 F.2d 434, 437 (Fed.Cir.1986), and therefore we may not address Ignacio's underlying claim to annuity benefits. 5 As to Ignacio's delay in filing her appeal, we cannot say that the AJ erred in dismissing her appeal on the basis that she had failed to establish good cause for her lengthy delay in filing her appeal. The Board has broad discretion in deciding whether or not to waive the regulatory time limit for filing an appeal, and this court will not substitute its own judgment for that of the Board. Mendoza v. Merit Sys. Protection Bd., 966 F.2d 650, 653 (Fed.Cir.1992) (in banc). In addition, this court reviews Board decisions under a very narrow standard, affirming them unless they are (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, (2) obtained without procedures required by law, rule, or regulation having been followed, or (3) unsupported by substantial evidence. 5 USC Sec. 7703(c) (1988). Finding no such grounds present here, we affirm the decision below.

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 06-2939 ___________ United States of America, * * Appellee, * Appeal from the United States * District Court for the v. * District of South Dakota. * Orville Red Feather, * * Appellant. * ___________ Submitted: January 8, 2007 Filed: March 13, 2007 ___________ Before COLLOTON and GRUENDER, Circuit Judges, and GOLDBERG,1 Judge. ___________ GOLDBERG, Judge. Appellant Orville Red Feather (“Red Feather”) appeals from his sentence of 30 months of imprisonment. For the reasons that follow, we affirm. I. In July 1994, Red Feather pleaded guilty to aggravated sexual abuse in violation of 18 U.S.C. § 2241(c) for sexually assaulting a four-year-old girl. The district court 1 The Honorable Richard W. Goldberg, Judge, United States Court of International Trade, sitting by designation. sentenced him to 135 months of imprisonment and four years of supervised release. The applicable guideline range was 135 to 168 months of imprisonment. After serving his time in prison, Red Feather began his term of supervised release in July 2004, and was placed in a community facility in Rapid City, South Dakota. The government filed a petition to revoke Red Feather’s supervised release later that year after he absconded from the facility with two women. The government rescinded that petition after the state dismissed charges relating to the escape. On one occasion in December 2004, he tested positive for marijuana and cocaine. Later, in March 2005, he was transferred to another facility for poor attendance and lack of participation in sex offender treatment. He was terminated from the second facility for falling asleep during treatment sessions and for inappropriate conduct with female clients. As a result, his supervised release was revoked on June 1, 2005, and he was sentenced to 12 months in custody followed by 30 months of supervised release. After release from custody on February 1, 2006, Red Feather was placed again in the Rapid City community facility. The doctor in charge of the Rapid City treatment program terminated Red Feather’s participation in the program when he suspected Red Feather of violating the confidentiality of group participants by sharing discussion details with facility residents not participating in the program. He then was admitted to another sex offender treatment program outside the Rapid City facility. On June 10, 2006, he tested positive for alcohol consumption. Four days later, he was terminated from the program, which violated the terms of his supervised release. The government filed a petition to revoke the supervised release that same day. At the revocation hearing, the district court2 determined the applicable revocation range was 5 to 11 months. The government asked for an upward variance 2 The Honorable Richard H. Battey, Senior United States District Judge for the District of South Dakota. -2- from the revocation range. The district court then sentenced Red Feather to 30 months of imprisonment with no term of supervised release to follow. At the hearing, the district judge explained his decision as follows: The Court is to consider the sentencing range, but also take into account certain factors listed in 18 United States Code section 3553(a) which includes a statutory goal of deterrence, incapacitation, and rehabilitation, the pertinent circumstances of the individual case, the applicable policy statements, sentence uniformity, and, if necessary, restitution. . . . The Court finds that the sentence to be imposed is necessary to further the goals of deterrence. The Court is not convinced that the defendant has rehabilitated nor can he be rehabilitated under the existence of supervised release if reinstituted. [Red Feather]’s continued to display the same pattern of selfish, immature, and belligerent behavior as he did prior to being revoked last year. He continues to disregard the conditions of the Court and of those in authority . . . . He has continued to manipulate those around him to satisfy his wants and has no desire to stop abusing substances which adds credence to the fact that he will go to any means to attain some type of hallucinogenic effect. This is particularly important since he was intoxicated when he admitted both previous sexual assaults.3 On appeal, Red Feather argues that the district judge erred on two accounts: first, the sentence represents an extraordinary variance without extraordinary justifying circumstances and therefore is unreasonable; and second, the sentence is greater than is necessary to achieve the purposes of sentencing set forth in 18 U.S.C. § 3553(a)(2). II. Congress has given district courts the authority to revoke supervised release and “require the defendant to serve in prison all or part of the term of supervised release 3 The Court presumes that the district court meant to say that Red Feather was intoxicated when he committed both previous assaults. The record evidence indicates his intoxication at the time of the felonies’ commission, and not the time of their admission. -3- authorized by the statute for the offense that resulted in such term of supervised release . . . .” 18 U.S.C. § 3583(e)(3) (2000). “In fashioning an appropriate revocation sentence, the district court is to consider the sentencing range, but also ‘must take into account certain of the factors listed in 18 U.S.C. § 3553(a), including the statutory goals of deterrence, incapacitation, and rehabilitation; the pertinent circumstances of the individual case; applicable policy statements; sentencing uniformity; and restitution.’” United States v. Nelson, 453 F.3d 1004, 1006 (8th Cir. 2006) (quoting United States v. Cotton, 399 F.3d 913, 916 (8th Cir. 2005)); see also 18 U.S.C. § 3583(e) (Supp. II 2002). Sentences imposed following revocation of supervised release are subject to appellate review for reasonableness. See United States v. Larison, 432 F.3d 921, 922 (8th Cir. 2006); United States v. Tyson, 413 F.3d 824, 825 (8th Cir. 2006). The reasonableness of the sentence is to be gauged in relation to the relevant § 3553(a) factors listed above. See Nelson, 453 F.3d at 1006. A. An “Extraordinary Variance” Must Be Supported by “Extraordinary Circumstances” Red Feather’s first argument is that his extraordinary variance was based on quite ordinary violations of his supervised release conditions. We have held in the past that “an extraordinary variance must be supported by extraordinary circumstances . . . .” United States v. Lyons, 450 F.3d 834, 837 (8th Cir. 2006); see also United States v. Dalton, 404 F.3d 1029, 1033 (8th Cir. 2005). Red Feather makes much of the fact that the 30 month sentence imposed amounted to 272 percent of the upper end of the revocation range. Such an upward variance almost certainly is “extraordinary” under our precedents. See, e.g., United States v. Reithemeyer, 2006 U.S. App. LEXIS 29100, *5-*6 (8th Cir. Nov. 22, 2006) (upward variance from 12 months to 36 months deemed extraordinary); United States v. Beal, 463 F.3d 834, 836 (8th Cir. 2006) (downward departure from 188 months to 104 months deemed extraordinary); United States v. Likens, 464 F.3d 823, 825-26 (8th Cir. 2006) (100 percent downward variance deemed extraordinary); Dalton, 404 F.3d at 1030 (downward departure from -4- 240 months to 60 months is extraordinary). Red Feather’s sentence, then, was reasonable only if there existed extraordinary circumstances for varying so drastically from the revocation range. When modifying or revoking supervised release, a district court is to consider, inter alia, the possibility that a defendant’s violations of his supervised release conditions will place others in danger, and the possibility of correctional treatment. See 18 U.S.C. §§ 3553(a)(2)(C)-(D) & 3583(e) (2000). Red Feather claims that the alcohol consumption that resulted in his termination from the program is by no means an extraordinary circumstance. In many cases, that may be unassailably true. However, cast against the background of Red Feather’s criminal history and substance abuse problem, the alcohol consumption presents an extraordinary threat to the community. Red Feather is a two-time sex offender. When he was 17 years old, he committed a violent rape. Within a year of being released from state custody for that juvenile rape conviction, he sexually abused a 4-year-old girl. Most importantly, in both cases Red Feather claimed he was so drunk he could barely remember the crimes. His past behavior reflects a correlation of alcohol abuse and egregious sexual misconduct and violence. In addition to the protection of the public, the district court was concerned with Red Feather’s lack of progress in sex offender treatment, and concluded that supervised rehabilitation was unlikely. At the hearing, the court mentioned the prior revocation of supervised release, Red Feather’s alcohol consumption, his lax participation in sex offender treatment, as well as the alleged confidentiality breach as evidence that Red Feather appeared unwilling or unable to take advantage of the opportunities his probation officer and the supervised release program offered him. In the Nelson case, we affirmed a district court’s revocation of supervised release and imposition of a 24-month sentence despite a revocation range of 4 to 10 months. See 453 F.3d at 1006-07. The defendant, who had been convicted of -5- conspiracy to manufacture marijuana, had failed four drug tests during his supervised release. Id. at 1005. In imposing the 24-month sentence, the district court mentioned that the defendant’s long history of drug abuse made treatment unlikely to succeed. See id. at 1006. In addition, the court made clear that the longer sentence was necessary to further the goals of deterrence and incapacitation stressed in 18 U.S.C. §§ 3553(a) and 3583(e). See id. Red Feather, much like Nelson, has refused to rehabilitate while subject to supervised release. Though the upward variance in this case exceeds the variance in Nelson (272 percent versus 240 percent), Red Feather’s inability to curb his alcohol consumption constitutes a much more serious threat than the violation charged in Nelson. Red Feather’s continued substance abuse, along with his unwillingness to benefit from the sex offender treatment, constitute a grave threat to the community and an unlikely case for rehabilitation. The district court was within its discretion to sentence Red Feather to 30 months of imprisonment. B. “Sufficient, But Not Greater Than Necessary” Red Feather’s second argument is that his 30-month sentence is greater than necessary to achieve the statutory purposes of sentencing and should be reversed. 18 U.S.C. § 3553(a) does indeed require any sentence imposed to be “sufficient, but not greater than necessary” to achieve the relevant statutory purposes of sentencing. 18 U.S.C. § 3553(a) (2000). In the case of revocation of supervised release, the relevant purposes are set forth in 18 U.S.C. § 3553(a)(2)(B)-(D). See id. § 3583(e). Those factors include affording adequate deterrence to criminal conduct, the protection of the public from further crimes, and the provision of rehabilitative and medical treatment. -6-  Specifically, he contends that the 30-month sentence is greater than necessary to protect the public and provide adequate rehabilitation. See App.’s Br. 13-14.4 As noted above, the district court was concerned with the protection of the public and Red Feather’s demonstrated inability to rehabilitate while subject to supervised release. The 30-month sentence is reasonable accommodation of the district court’s obligation to impose a sentence that is sufficient, but not greater than necessary, to provide adequate protection of the public and rehabilitation of the defendant. III. For the reasons stated, we affirm Red Feather’s sentence. 4 Red Feather also argues that the “nature and circumstances of his case, along with his personal history and characteristics, demonstrated the need for continued, perhaps closer, supervision instead of merely warehousing [him] back in prison.” App.’s Br. 13. This argument is inapposite in the context of the sufficient-but-not- greater-than-necessary clause. It is true that a district court must “consider” those factors when sentencing a defendant, see 18 U.S.C. § 3553(a)(1), but the sufficient- but-not-greater-than-necessary clause only applies to the sentencing goals enumerated in subsection (a)(2). -7- 

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 11-2764 ___________ Estate of Nell G. Pepper, by the * administrator for both Estates, Norma * Deeble; Estate of Sterling Gary Pepper, * by the administrator for both Estates, * Norma Deeble, * * Appeal from the United States Appellants, * District Court for the * Southern District of Iowa. v. * * Nancy Pease Whitehead; * Pease Family Partnership, * * Appellees. * ___________ Submitted: March 14, 2012 Filed: July 31, 2012 ___________ Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges. ___________ WOLLMAN, Circuit Judge. Plaintiffs, the Estate of Sterling Gary Pepper and the Estate of Nell G. Pepper (the Estates), appeal the district court’s order granting Nancy Pease Whitehead and the Pease Family Partnership’s (the defendants) motion for summary judgment. We reverse and remand.  I. The parties find themselves in a dispute over the rights to an extensive collection of Elvis Presley memorabilia (the collection). The collection was amassed by Sterling Gary Pepper, Jr. (Gary), who had a deep love for Elvis’s music, developed a close personal friendship with Elvis (often referred to as the “King of Rock and Roll”), and served as Elvis’s fan club president.1 Gary often found himself at the center of Elvis’s personal life, sitting at the head table at Elvis and Priscilla Presley’s wedding reception, posing for photographs with the young couple at Graceland after the birth of their daughter, Lisa Marie, and receiving front row seats to many Elvis concerts. In 1971, Gary’s father, Sterling Gary Pepper, Sr. (Gary, Sr.), died of a heart attack while on security guard duty at the Graceland gates. His death left only Gary’s mother, Nell Pepper (Nell), to care for Gary, who suffered from cerebral palsy. Gary’s condition adversely affected his daily life, rendering him unable to walk, use his hands, or speak in a manner that could be understood by many persons other than Nell. Nell eventually found herself unable to care for Gary because of the severe depression and periodic manic states she suffered from following Gary, Sr.’s death. Her condition deteriorated to such an extent that she frequently defecated on the floor when upset, ran away from home, constantly banged on doors for lengthy periods, stopped cleaning Gary’s wet bed, and allowed the house to fall into a state of squalor. Meanwhile, in 1974, Nancy Pease Whitehead’s (Nancy’s) love of Presley’s music caused her to move from her home in Cedar Rapids, Iowa, to Memphis, Tennessee, to enable her to absorb the local culture of her idol’s hometown. Nancy, 1 Gary played an integral role in founding and developing “The Tankers,” a fan club named in honor of Elvis’ service with the Third Armored Division stationed in Germany from 1958 to 1960. At the height of its membership, the Tankers’ worldwide membership exceeded 5,000. -2- a licensed practical nurse, frequently spent her days hoping to catch a glimpse of Elvis at the gates of Graceland, where one day she was approached by Carl Nichols, a member of Presley’s inner circle. Aware of Nell’s inability to care for Gary, Nichols informed Nancy that Gary and Nell needed assistance. Upon learning of Gary and Nell’s needs, Nancy began assisting them in 1976 at their modest two-bedroom bungalow on Eva Street. Nancy slept on the living room couch, worked to improve the home’s conditions, assisted Gary with physical therapy, and taught him how to swim and drive. By all accounts, Nancy provided care that was steadfast, loyal, and true. Recognizing the need for additional assistance, Nancy eventually invited her mother, Helen, and brother, Dennis, to also move from Cedar Rapids to Memphis, and the two of them began living with Nancy, Gary, and Nell at the Eva Street house, supporting themselves on Helen, Gary, and Nell’s social security and Gary’s fan club income. Finding the home inadequate for their needs, the five moved to a house on Dolan Street, next to the home of Presley’s father, Vernon Presley, fulfilling Gary’s wish of being nearer to Graceland.2 The house met their every need, and the five lived there together as a family. Elvis died on August 16, 1977. The death of Gary’s idol wrought great change in the lives of the Dolan Street household. On October 28, 1977, Gary and Nell received notice from Vernon Presley that Elvis’s estate, charged with the duty of conserving assets for its beneficiaries, could no longer keep Gary on its payroll. At that point, without means of financial support beyond Gary, Nell, and Helen’s social security checks, Nancy concluded that they could not afford to continue living in Memphis. Gary and Nancy’s relationship became strained when Gary opposed a surgery that Nancy believed he needed to reduce his spasticity. Nancy and Helen 2 The parties dispute who purchased the Dolan Street home. Defendants contend that Helen and Nancy purchased the house, while plaintiffs argue that Gary and Nancy pooled their money to purchase the house. -3- eventually decided to return to Cedar Rapids, where Nancy’s brother had a house that Nancy, Helen, Dennis, Gary, and Nell could reside in for free. Concerned for Gary and Nell’s health and convinced that they would not want to live in the only Memphis nursing home that would take them, Nancy invited them to move to Cedar Rapids with her, Helen, and Dennis. All moved to Cedar Rapids in April of 1978. Defendants contend that sometime between Elvis’s death and the move to Cedar Rapids, John Tate—Nell’s nephew and Gary’s cousin—traveled from his California home to Memphis, where he visited them on February 3, 1978.3 Defendants contend that the purpose of Tate’s visit was to help Gary consider the above-mentioned surgery. John Tate at some point discussed with the Peppers the possibility of moving Gary and Nell to California as a solution to their care needs. It is unclear to what extent items of the collection were displayed at the Dolan Street house at the time of Tate’s visit or whether ownership of the items on display was discussed, though Nancy testified in her deposition that Tate knew of the full extent of the collection. Also accompanying Gary, Nell, Nancy, Helen, and Dennis to Cedar Rapids was Gary’s vast collection of Elvis-related memorabilia. In the summer of 1978, Gary and Nell entered a Cedar Rapids nursing home, which Nancy considered a “holding area” until the Tates could come to take Gary and Nell to California. Gary brought some of his memorabilia to the nursing home, with the remainder of the collection staying at Nancy’s home. 3 The Estates also alleged in their Second Amended Complaint that sometime after the Peppers and Peases moved to Cedar Rapids in April of 1978, “Mr. Tate traveled to Gary Pepper’s former home in Memphis, Tennessee to pack up Gary’s remaining items of property, but found that the home was empty.” Second Am. Compl. ¶ 18. The record does not include any evidence of this trip. -4-  At some point, Gary and Nancy discussed the future of the collection. In her deposition testimony, Nancy explained that Gary told her to “keep it for him,” and that she did not interpret Gary’s statement as transferring possession or gifting the collection to her. Whitehead Dep. at 138. Nancy further testified that she never thought that the collection belonged to her and that Gary “never actually gave” the collection to her. Id. Rather, Gary left the collection at Nancy’s house for Nancy to “watch over it” while he planned his upcoming move to California and determined his living arrangements there. Id. at 55. In addition, Nancy testified, “I thought, you know, maybe he wanted it sent to him later when he knew where he was going to be going.” Id. at 138. The record does not suggest any contemplation of a finite length of time that Nancy was to hold the property for Gary, or of a specified time for Gary to demand that the property be returned. In any event, according to Nancy, Gary did not want the collection thrown away, so she saved it. In the fall of 1978, John Tate and his mother, Rebecca Tate (Nell’s sister), came to Cedar Rapids from their California home and removed Gary and Nell from the nursing home. Rebecca, after packing all of Gary and Nell’s belongings that were in the nursing home, drove the two to California, while John returned by plane. According to John, he believed that the items in the nursing home were “the extent of [Gary’s] personal property.” John Tate Aff. ¶ 5. Gary took with him to California the memorabilia that he had brought to the nursing home, which consisted of a 14- karat gold bracelet given to Gary by Elvis inscribed “FROM E.P. 12/25/65”; two gold rings; a Rolex Oyster watch given to Gary by Elvis; autographed record covers; Sun Studios records; a home video of Priscilla Presley’s baby shower; a “G.I. Blues” album cover autographed by Elvis and his manager, “The Colonel”; photographs of Elvis, Gary, and Nell; and a letter and envelope from Elvis to Gary sent from Germany. The Tates did not inform Nancy of their trip to Cedar Rapids to move Gary and Nell to California. Nancy did not learn of the move until she stopped by the nursing home one night to feed Gary, only to discover that he and Nell were gone. -5-  Gary and Nell remained in California until their deaths on March 29, 1980, and December 29, 1982, respectively. According to John Tate and Norma Deeble (another cousin of Gary’s), while living in California, Gary and Nell never had any conversations with them about the existence of the collection in Iowa, and there is no evidence in the record that Gary or Nell discussed the collection with any relatives after moving to California. Gary and his family did not communicate with Nancy after the move to California. Neither Nancy nor anyone from her family contacted Gary’s family upon hearing of Gary’s death, though Nancy testified that she would have attempted to contact the family had she known where they were. She made no effort to locate the family, but agreed that “a reasonable person would have tried to contact the family.” Whitehead Dep. at 57. Defendants do not dispute that in April of 1980, Nancy received a copy of Gary’s obituary, which stated where Gary died, the hospital at which he died, and the funeral home where arrangements were being made, as revealed in the following obituary for Gary, which appeared in a Memphis newspaper on March 31, 1980: Gary Pepper, a cerebral palsy victim who endeared himself to many Elvis Presley fans because of his longtime adoration of Presley, died Saturday in Long Beach, Calif. Mr. Pepper, 48, who moved to Long Beach from Memphis about two years ago, died at 11:30 a.m. at Alameda (Calif.) Hospital. “He’s still getting fan letters from people wanting to know where he was. He hadn’t been well for about a year. After Elvis died, it was sort of a mess. Gary was a good friend of Elvis Presley and Elvis did wonderful things for Gary, and we appreciated that,” John Tate, Mr. Pepper’s cousin and guardian, said yesterday when contacted in Long Beach. “People would write him (Gary) from all over. But since Elvis died, it sort of took the life out of him. He was very faithful to Gary. -6-  Everybody in Memphis had always been good to Gary. It was hard to get him away from Memphis.” Said Tate. Despite his handicap, Mr. Pepper was very independent. He operated a clipping service, learned to drive a car a few years ago, and was on Elvis’ payroll as “Fan Club Coordinator and Foreign Correspondent.” At one time, he also wrote “Memories of Elvis” for the Graceland Fan Club publication and for “Elvis Monthly,” an English publication. He had an extensive collection of Elvis mementos, including autographed pictures and records. Funeral arrangements are incomplete. Coon’s Mortuary in Long Beach has charge. He leaves his mother, Mrs. Nell Pepper of Long Beach. Defs.’ Reply to Pls.’ Statement of Additional Material Facts and Resp. to Defs.’ Statement of Material Facts, at 11; Dist. Ct. Doc. 59-5, at 5. At his deposition, John Tate denied speaking to anyone at the Memphis newspaper or making the quotes attributed to him, though he subsequently hedged on whether such a conversation might have occurred. Tate also denied seeing the obituary at any point prior to this litigation. Nancy acknowledged that “[t]he property has always been Gary’s. After he died I really didn’t know what to do with it.” Whitehead Dep. at 53. Following Gary’s death, Nancy thought about giving the property back to Gary’s family, but, as recounted above, she made no effort to contact them because, according to her testimony, she “had no way of knowing how to get ahold of them.” Whitehead Dep. at 58. In 1982 or 1983, Nancy gave the collection to her sister, Janet “Jenny” Jorgensen, of Des Moines, Iowa, after Nancy moved and found herself with no place to store the collection. Jorgensen testified that she understood the collection to -7- belong to her upon receiving it from Nancy. She made no attempt to contact Gary’s family. Jorgensen maintained the collection until she decided to sell it in 2009. At that point, she created the Pease Family Partnership (the Partnership)—an Iowa general partnership—to which she transferred the collection. The Partnership then transferred the collection to an auction house in Chicago, Illinois, where it was entitled the “Gary Pepper Collection of Elvis Presley Memorabilia” and scheduled for sale at auction on October 19, 2009. The proposed auction caused the collection to receive widespread media publicity. One of Gary and Nell’s relatives, Rebecca Bishop, learned about the auction through such coverage and notified her mother, Norma Deeble, and her uncle, John Tate. Deeble and Tate stated in affidavits that they had no knowledge of the collection’s existence and Gary’s ownership of it until being informed by Bishop. On October 15, 2009, Tate and Deeble brought a conversion claim against Leslie Hindman Auctioneers, Inc. (the auctioneers) and Nancy in the United States District Court for the Northern District of Illinois, seeking to enjoin the auction and recover the collection for Gary’s heirs. The Estates’ motion for a temporary restraining order was denied, but the district court ordered the auctioneers to maintain all proceeds from the auction in escrow pending resolution of the conversion claim. At auction, the 181 items composing the collection resulted in a total sale price of $250,465.00, including $28,000 for an Elvis-worn red ultrasuede shirt, $15,000 for a large quantity of Elvis’ hair that was cut for his Army tour of duty; $6,000 for an original 1954 record of Elvis’ first single, “That’s All Right”; $4,000 for original photographs and negatives from Elvis and Priscilla’s wedding reception; $600 for a set of Elvis’s concert-used handkerchiefs; and $1,400 for two dried white roses from Elvis’ funeral. -8-  Following the sale, the auctioneers were dismissed from the suit, the Partnership was added as a defendant, the Estates were substituted for Tate and Deeble as the plaintiffs, and the case was transferred to the United States District Court for the Southern District of Iowa. The Estates’ Second Amended Complaint brought claims for (1) conversion by a bailee, (2) fraud, (3) mislaid or lost property, and (4) failure of bailee to return property. Defendants filed a counterclaim for recovery of the value of preserving the collection during the period it was possessed by them. The district court granted defendants’ motion for summary judgment on all claims, concluding that the applicable statute of limitations for the Estates’ claims had expired. The district court also denied as moot the Estates’ motion for summary judgment on defendants’ counterclaim and several of defendants’ affirmative defenses. The Estates have appealed from the district court’s order with respect to the conversion claim, arguing that the district court failed to apply governing Iowa law on the statute of limitations issue. The Estates also argue that the district court failed to view the facts in the light most favorable to them when ruling that the discovery rule, which would have tolled the statute of limitations, was inapplicable as a matter of law. In addition, the Estates appeal the denial as moot of their motion for summary judgment. II. “We review the district court’s grant of summary judgment de novo, applying the same standards as the district court and viewing the evidence in the light most favorable to the nonmoving party.” Zike v. Advance Am., Cash Advance Ctrs. of Mo., Inc., 646 F.3d 504, 509 (8th Cir. 2011) (quoting Travelers Prop. Cas. Co. of Am. v. Gen. Cas. Ins. Co., 465 F.3d 900, 903 (8th Cir. 2006)). “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any -9- material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). III. A. Whether the District Court Properly Applied Iowa Law in Determining when Running of the Statute of Limitations Commenced The parties agree that Iowa law governs this diversity action. The Estates argue that the district court erred in applying Iowa contract law in granting summary judgment to defendants on the Estates’ claim for conversion by a bailee. Under the Estates’ theory, the statute of limitations for demanding return of the bailed property did not begin to run until conversion of the collection occurred.4 Defendants contend that the district court was correct in ruling that “absent good cause for a delay in demanding return of the Memorabilia either while [Gary] remained in Iowa or after his move to California, the Court finds it reasonable under the circumstances to conclude that demand should have been made during the five-year limitations period” commencing with creation of the bailment in 1978. Dist. Ct. Order of July 14, 2011, at 11. In Reizenstein v. Marquardt, the Supreme Court of Iowa addressed the event that triggers the running of the statute of limitations in an action for conversion of bailed property. 39 N.W. 506 (Iowa 1888). In 1877, Reizenstein left his gold watch with a watch repairer for safekeeping. Over the course of the next ten years, Reizenstein and Marquardt had various conversations regarding the watch, including 4 Defendants do not dispute the district court’s finding that, “[v]iewing the facts in a light most favorable to plaintiffs . . . material issues of fact exist as to whether Gary exhibited ‘donative intent’ when he told Nancy to ‘keep’ the property [i.e., the collection], or whether he intended Nancy to hold the property as a gratuitous bailee.” See Dist. Ct. Order of July 14, 2011, at 9. -10- Marquardt’s expressing his desire to purchase it. Reizenstein consistently refused to sell the watch to Marquardt and demanded its return in 1887. Marquardt refused, whereupon Reizenstein brought a claim for conversion of bailed property. The court held that “[n]o right of action accrued until there was a wrongful conversion of the property,” and “the statute of limitations will not begin to run in favor of a bailee until he denies the bailment and converts the property to his own use.” Id. at 507. Deeming “[t]he rights and obligations of a bailee of personal property” to be “very much like those of a trustee of a resulting trust in realty,” the court noted that “it has always been held that the statute of limitations commences to run in favor of a trustee from the time when he denies the trust, and claims the trust property as his own.” Id. (citing Peters v. Jones, 35 Iowa 512 (1872); Gebhard v. Sattler, 40 Iowa 152 (1874)). The court rejected the defendant’s argument that the five-year statute of limitations commenced when the deposit of the bailed property was made, explaining that is “the rule as to actions arising upon contracts, express or implied,” whereas “the action in this case is in the nature of an action for a tort.” Id. (citations omitted). The Iowa Supreme Court subsequently reaffirmed this distinction in Lovrien v. Oestrich by holding that an action for repayment of a promissory note was barred by the five- year statute of limitations commencing on the date of the note because “[n]o question of bailment, or trust, or of contract indicating an expectation that there was to be delay in making demand [wa]s involved.” 242 N.W. 57 (Iowa 1932) (citing Reizenstein, 39 N.W. 506) (additional citations omitted). We conclude that the district court erred by not applying the rule regarding bailments outlined in Reizenstein. The district court held that the statute of limitations began running when the bailment was created in 1978, citing and quoting from that portion of Reizenstein which discussed the rule governing contract actions. See Dist. Ct. Order of July 14, 2011, at 10 (noting that “[g]enerally, when the time for demand is not specified under the terms of the agreement, courts have required that demand be made within the limitations period”) (citing Reizenstein, 39 N.W. at 507) (“[U]nless demand be made in a reasonable time, the plaintiff will not be entitled to -11- relief; and a reasonable period of time is determined by the circumstances; and where no cause for delay is shown, the time is to be fixed by the statute of limitations.”). The district court also relied on Smith v. Middle States Utilities Co., 293 N.W. 59 (Iowa 1940), which involved a suit alleging breach of a repurchase agreement. Id. at 61. In Smith, the Supreme Court of Iowa applied the Iowa rule for contracts, which requires a demand within a reasonable amount of time (generally prescribed by the statute of limitations) as a prerequisite for bringing suit. Id. at 63-64 (citing Reizenstein, 39 N.W. at 507 (“This is the rule as to actions arising upon contracts, express or implied.”). The Estates’ claim for conversion by a bailee, however, arises in tort, the statute of limitations for which did not commence until a conversion of the collection occurred. See Reizenstein, 39 N.W. at 507. We note that the district court sought to distinguish Reizenstein on its facts, noting that “the parties in Reizenstein were in regular contact regarding the watch throughout the time period at issue,” whereas “there is no evidence that Gary evidenced any desire to reclaim ownership of the Memorabilia after telling Nancy to ‘keep’ the Memorabilia.” Dist. Ct. Order at 10 n.6. Nancy conceded in her testimony, however, that Gary did not intend for her to keep the collection permanently. Moreover, the lack of evidence of a subsequently expressed desire to reclaim the property resulted in part from the fact that Gary died less than two years after creation of the bailment, and the parties dispute whether his heirs (other than his emotionally challenged mother, who died within five years of creation of the bailment) knew of the collection’s existence. Whatever the difference in the facts, we read Reizenstein as holding that the statute of limitations for claims for conversion by a bailee does not commence until the alleged conversion occurs.5 5 Defendants argue that a reversal of the district court’s ruling would require gratuitous bailees in Nancy’s circumstances to hold bailed property in perpetuity for the heirs of deceased bailors to claim. They also suggest that a time limitation should be placed on a bailor’s claim for the return of gratuitously bailed property. We conclude that these arguments are better left for resolution in a case the facts of which -12- B. Whether the District Court Properly Ruled that the Discovery Rule was Inapplicable Viewing the facts in the light most favorable to the Estates, the conversion of the collection occurred in either 1982 or 1983 when Jorgensen took possession of the collection. Under those dates, the statute of limitations would have expired in 1987 or 1988, respectively, unless the discovery rule applies. See Iowa Code § 614.1(4) (setting five-year statute of limitations for “injuries to property”); Husker News Co. v. Mahaska State Bank, 460 N.W.2d 476, 476-77 (Iowa 1990) (noting that a conversion claim is one for “injuries to property” under Iowa law subject to a five- year statute of limitations). Iowa applies the discovery rule to toll a statute of limitations. See Hallet Constr. Co. v. Meister, 713 N.W.2d 225, 231 (Iowa 2006). “The discovery rule tolls the statute of limitations until the plaintiff has discovered the fact of the injury and its cause or by the exercise of reasonable diligence should have discovered these facts.” Id. (citing K & W Elec., Inc. v. State, 712 N.W.2d 107, 116 (Iowa 2006) (internal quotations omitted)). “Once a claimant learns information that would inform a reasonable person of the need to investigate, the claimant is on inquiry notice of all facts that would have been disclosed by a reasonably diligent investigation.” Id. (citing K & W Elec., Inc., 712 N.W.2d at 117) (internal quotations omitted). “Issues of due diligence and constructive knowledge depend on inferences drawn from the facts of each particular case . . . . When conflicting inferences can be drawn from the facts, summary judgment is inappropriate.” Kraciun v. Owens-Corning Fiberglas Corp., 895 F.2d 444, 447 (8th Cir. 1990) (quoting Foster v. Johns-Manville Sales Corp., 787 F.2d 390, 393 (8th Cir. 1986) (applying Iowa discovery rule in tolling a statute of limitations)). The plaintiff bears the burden of pleading and proving the might render them dispositive of the outcome. -13- applicability of the discovery rule, but when a defendant claims a statute of limitations defense in a summary judgment motion, the court “review[s] the evidence presented in the light most favorable to the plaintiffs as nonmoving parties.” Id. at 445-46.6 The Estates argue that they did not discover the existence of the collection, Gary’s ownership of it, and the creation of the bailment until Bishop saw media coverage about the auction in 2009. Defendants argue that the Estates should have developed suspicious minds sooner, based on John Tate’s alleged visit to the Dolan Street house, Gary’s transporting of various memorabilia to California, and the family’s general knowledge of Gary’s ties to Elvis, including the information revealed by the alleged interview given by John Tate for Gary’s obituary. The district court ruled by way of a footnote that the discovery rule was inapplicable: [T]he facts are undisputed that John Tate visited Gary and Nell in their home in Memphis, and therefore was on notice that Gary’s Elvis collection extended far beyond those few items Gary had taken with him to the nursing home in Iowa. If John Tate or other heirs wanted these additional items back after Gary’s death, a reasonable investigation within the limitations period would have enabled him to contact Nancy in Iowa and locate the remaining Memorabilia. The discovery rule is therefore inapplicable. 6 Defendants argue that the Estates did not satisfy their burden of pleading an exception to the normal statute of limitations period. In their reply to the defendants’ amended answer and counterclaim, however, the Estates pleaded in response to the defendants’ statute of limitations affirmative defense that they “had no knowledge of potential causes of action and the whereabouts of the property at issue, or any reasonable basis to determine causes of action or that the property was missing until learning of the auction in the news media.” Pls.’ Reply to Defs.’ Am. Answer and Countercl., at 1. We conclude that this statement satisfied the Estates’ pleading burden concerning application of the discovery rule. -14- Dist. Ct. Order of July 14, 2011, at 13 n.8 (citing photos of interior of Dolan Street home showing display of memorabilia in background and deposition testimony in which Tate discusses visits to Gary and Nell in Memphis). Based upon our review of the record, we conclude that the district court did not view the facts in the light most favorable to the Estates in ruling the discovery rule inapplicable. The linchpin of defendants’ argument that the Estates were on inquiry notice of all facts that would have been disclosed by a reasonably diligent investigation is John Tate’s visit to the Dolan Street house in 1978. As discussed above, however, disputes exist and the record is unclear concerning when Tate visited the house, how long his visit lasted, the extent to which items of the collection were on display at the time of the visit, and whether ownership of those items was discussed.7 Considering that Nancy, Helen, and Dennis also resided in—and possibly owned—the house with Gary and Nell, it would be reasonable to infer that whatever Elvis-related items on display belonged to one of them, particularly so in light of Nancy’s almost obsessive interest in Elvis and his career. A genuine dispute of material fact also exists on the subject whether Gary’s move to California put his family on inquiry notice of the collection’s existence. Defendants contend that the Tates’s knowledge of Gary’s possession of various Elvis memorabilia at the Cedar Rapids nursing home and his bringing that memorabilia with him to California placed them on inquiry notice. Nancy’s testimony that Gary’s family knew about the collection supports this argument. According to John Tate’s testimony, however, he believed that the items that Gary possessed at the nursing home and brought with him to California constituted the full extent of Elvis memorabilia owned by Gary. Tate and Deeble attested via affidavit—and Tate 7 The record includes various photographs depicting various items of the collection in the Dolan Street house. The photographs are not dated, however, and it is unclear whether such items were on display at the time of Tate’s visit. -15- testified at deposition—that they had no conversations with either Gary or Nell regarding the existence of the collection. Moreover, a reasonable jury could find that Gary’s difficulty in communicating contributed to his relatives’ not understanding any comments that he may have made regarding the collection. Additionally, Nell’s mental health problems affected her interactions with others. Also relevant is the fact that Gary, and possibly Nell (depending on when in 1982 or 1983 the conversion occurred) died prior to the conversion, and both died prior to the expiration of the statute of limitations. Defendants argue that Gary’s Memphis newspaper obituary demonstrates John Tate’s knowledge of the collection’s existence at the time of Gary’s death. As recounted earlier, however, Tate denied being interviewed by the newspaper or making the quotes attributed to him. Even had he made the quotes attributed to him, the only statement in the obituary regarding the collection neither quoted nor was otherwise attributed to him, and he denied ever reading the obituary prior to this litigation. In addition, the types of memorabilia described in the obituary share similarities with the memorabilia brought by Gary to California. Thus, a genuine issue of material fact exists concerning Tate’s pre-2009 knowledge of the collection’s existence. In light of the above-described circumstances, conflicting inferences reasonably can be drawn from the limited facts regarding Tate’s visit to the Dolan Street house, the memorabilia brought to California, and Gary’s Memphis obituary. These conflicting inferences create genuine issues of material fact concerning whether the Estates should have been on inquiry notice whether the collection had been converted by the defendants. Thus, whether the discovery rule should be applied in this case is a question to be answered by a jury, and summary judgment therefore should not have been entered on the Estates’ conversion claim. -16-  IV. We reverse the judgment with respect to the conversion claim and remand the case to the district court for further proceedings. ______________________________ -17- 

82 Cal.App.2d 670 (1947) JOHN B. ROMANO, Appellant, v. WILBUR ELLIS & COMPANY (a Corporation) et al., Respondents. Civ. No. 13440. California Court of Appeals. First Dist., Div. Two. Dec. 3, 1947. McLaughlin, McGinley & Hanson and James A. McLaughlin for Appellant. Walter Slack, Gavin McNab, Schmulowitz, Aikins, Wyman & Sommer, Nat Schmulowitz and Sidney F. DeGoff for Respondents. NOURSE, P. J. Plaintiff sued in tort arising from the alleged representations of defendants which induced a third party to repudiate its contract with plaintiff. A demurrer to the complaint was sustained without leave to amend, a timely request for leave to amend was denied, and judgment was entered for defendants. [1a] 1. Does the complaint state a cause of action? It is alleged that in 1941 a Peruvian corporation named "Industrial Pesquera, S.A." executed a written contract with plaintiff and one Reed, copartners, for the exclusive right for the period of 10 years to sell its fish and fish products. In June 1942, the partnership of appellant and Reed was dissolved. Appellant took over the entire business and with the oral consent of Pesquera, the written contract was continued in force, and appellant continued the business under the old partnership name having duly filed a certificate for that purpose. In June, 1943, defendants falsely represented to Pasquera that appellant was not fit or qualified to represent them, that Pesquera could deal more profitably and advantageously with defendants if it would discontinue its contractual relations with plaintiff and deal solely through *672 defendants, and persuaded them to cancel their contract with appellant and to refuse to pay him the agreed commissions as agent. The pleadings present a case closely akin to Elsbach v. Mulligan, 58 Cal.App.2d 354 [136 P.2d 651]. [2] One who fraudulently and wrongfully induces another not to perform a contract is liable for the harm thus caused. Restatement Torts, 766; Remillard-Dandini Co. v. Dandini, 46 Cal.App.2d 678 [116 P.2d 641]; H. G. Fenton Mat. Co. v. Challet, 49 Cal.App.2d 410 [121 P.2d 788]; Imperial Ice Co. v. Rossier, 18 Cal.2d 33 [112 P.2d 631]; Speegle v. Board of Fire Underwriters, 29 Cal.2d 34 [172 P.2d 867]. [1b] Neither the complaint nor the proposed amendment is a model of good pleading but a triable cause of action is pleaded. It is said in Imperial Ice Co. v. Rossier, supra, page 35: "Most jurisdictions also hold that an action will lie for inducing a breach of contract by the use of moral, social, or economic pressures, in themselves lawful, unless there is sufficient justification for such inducement. (See cases cited in 84 A.L.R. 55; 24 Cal.L.Rev. 208, 209; see Sayre, Inducing Breach of Contract, 36 Harv.L.Rev. 663, 671; Carpenter, Interference With Contractual Relations, 41 Harv.L.Rev. 728, 732; Rest., Torts, sec. 766.)" Again, at page 39, the court said: "By inducing Coker to violate his contract, as alleged in the complaint, they sought to further their own economic advantage at plaintiff's expense. Such conduct is not justified." (Emphasis added.) In the Speegle case, however, the defendants were charged with having caused the termination of plaintiff's contracts as an insurance broker because he refused to comply with their demand to cease to represent nonboard companies. The court cited with approval the Imperial Ice Company case to the point that: "Intentional and unjustifiable interference with contractual relations is actionable in California as in most other jurisdictions." (P. 39.) The Speegle case seems to rest on the question whether the activities of defendants were justifiable." (P. 41.) This expression is used in many of the cases cited, but without definition. By way of illustration it is said in the Imperial Ice Company case that employees may bring pressure upon others to induce breaches of contract between an employer and his employees to improve their economic relations. On the other hand, it is said: (P. 37) "A party may not, however, under the guise of competition actively and affirmatively induce the breach *673 of a competitor's contract in order to secure an economic advantage over that competitor."" In 41 Harvard Law Review, page 747, cited in the Speegle case the principles here are thus recapitulated: "The interest in freedom from interference with contracts cannot be invaded with impunity in furtherance of an interest in freedom to enter into contract relations, an interest less highly protected in the law than the interest in contracts. Therefore, if the defendant enters into a contract with a person, who is already under contract with the plaintiff, with knowledge or surmise of the existence of the prior contract, and of the fact that performance to the defendant will prevent performance to the plaintiff, he is merely furthering his interest to enter into contracts and he should not only not be able to recover on the contract which he has made, but should be held liable for inducing breach of contract, or be enjoined from interference, even though the prior contract does not give the third person a property interest." [3a] The proposed amended complaint presents such a case. It charges the defendants with falsely representing to Pesquera that plaintiff was "not fit or qualified to act as agent" for the purpose of convincing Pesquera to terminate its agency with the plaintiff and to employ the defendants in that capacity. [4] It is immaterial whether after the dissolution of plaintiff's partnership his contract with Pesquera was one "at will." Speegle v. Board of Fire Underwriters, supra, says (p. 39) that "at the will of the parties, respectively does not make it one at the will of others," and that "the great majority of the cases have held that unjustifiable interference with contracts terminable at will is actionable." 2. Is the action barred by the statute of limitations? This is not an action for breach of the contract between appellant and Pesquera. The latter is not a party to the action. The suit is for damages for fraud. The accepted rule of the cases hereinabove cited is that the gist of this type of action is fraud. Section 1573 of the Civil Code provides: "Constructive fraud consists:" "1. In any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault, or anyone claiming under him, by misleading another to his prejudice, or to the prejudice of anyone claiming under him." *674 In Imperial Ice Co. v. Rossier, supra, the court said: "It is universally recognized that an action will lie for inducing breach of contract by a resort to means in themselves unlawful such as libel, slander, fraud, physical violence, or threats of such action." (P. 35.) If a party were suing for simple libel, slander or physical violence, the cause would be limited to the one-year period of section 340. But the gist of the action is the "fraudulent inducement" leading to the breach of the contract. Elsbach v. Mulligan, 58 Cal.App.2d 354, 366 [136 P.2d 651]. [5] The complaint sets forth that these false representations were relied on by Pesquera, that they were uttered with the intent to mislead Pesquera to the prejudice of plaintiff and that they were made for the purpose, and accomplished the result, of gaining "an advantage to the person in fault." This is fraud under section 1573 of the Civil Code. As an action based on fraud it comes within the three-year limitation of subdivision 4, section 338, Code of Civil Procedure. Since the complaint was filed within three years of the act complained of, it is not barred by the statute. 3. Respondents attack the validity of the assignment of the agency contract by Reed to his partner Romano; they also attack the validity of the oral consent of Pesquera accepting the assignment and continuing the written contract in full force. From this they argue that since the oral contract covered a period of more than one year, it was within the statute of frauds and so unenforceable. Practically all the authorities are contra. (See 41 Harv.L.Rev. p. 739, n. 12.) [6] An oral contract is not void on its face because it may continue an obligation for more than one year. The promissor may waive the statute if he sees fit. [7] An assignment of a partnership interest in an agency contract is not voidable at the will of a third party, such as the defendants herein. There are many factors such as acquiescence, confirmation and estoppel which may arise when these issues come to trial on the merits. In the Speegle case, supra, it was held that this type of action would lie in relation to a contract terminable at will. From the allegations in the complaint, it appears that appellant contends that his contract with Pesquera was terminated through the fraud of respondents, not because of the elimination of the partnership nor because some subsequent oral contract to continue the agency might have been terminable at will. *675 [3b] Appellant complains of the order of the trial court denying him leave to amend. A proposed amended complaint was offered with a request for leave to file. This is no great improvement on the pleading upon which the demurrer was argued. But the pleadings should be construed "with a view to substantial justice between the parties," [see Speegle v. Board of Fire Underwriters, supra, p. 42], and the right to amend should not be lightly denied. If there are material imperfections or uncertainties in the pleading, the plaintiff should be granted leave to amend. Judgment reversed. Goodell, J., and Dooling, J., concurred.

C-Track E-Filing Nevada Appellate Courts Appellate Case Management System C-Track, the browser based CMS for Appellate Courts Case Search Participant Search

IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE OCTOBER 12, 2000 Session GENERAL BANCSHARES, INC. v. VOLUNTEER BANK & TRUST Appeal from the Chancery Court for Marion County No.6357 John W. Rollins, Judge by designation No. M2000-00231-COA-R3-CV - Filed November 30, 2000 The Plaintiff, General Bancshares, Inc., filed a declaratory judgment action asking the Trial Court to declare a restrictive covenant in its warranty deed unenforceable. Defendant Volunteer Bank & Trust’s predecessor in title of the property at issue originally placed the restriction on the property several years ago. Plaintiff contends, among other arguments, that the restrictive covenant does not bind it as a remote grantee because the restrictive clause does not contain specific “successors and assigns” language. Both parties filed Motions for Summary Judgment, and the Trial Court granted Defendant’s Motion. Plaintiff appeals. We affirm. Tenn. R. App. P. 3; Judgment of the Chancery Court Affirmed; case Remanded. D. MICHAEL SWINEY, J., delivered the opinion of the court, in which HERSCHEL P. FRANKS , J. and CHARLES D. SUSANO, JR., J. joined. C. Dewees Berry, IV, and Susan W. Foxman, Nashville, Tennessee, for the appellant, General Bancshares, Inc. Tracy C. Wooden, Chattanooga, Tennessee, for the appellee, Volunteer Bank & Trust. OPINION 1  Background This suit arises from a dispute regarding a restrictive covenant on a parcel of property (hereafter "Property") located in the Town of Powell's Crossroads. Plaintiff, General Bancshares, Inc., is the current owner of the Property. Plaintiff filed this declaratory judgment action, asking the Trial Court to find that a restriction in its warranty deed (hereafter "Restrictive Covenant") was not enforceable. Defendant, Volunteer Bank & Trust, is a successor to the previous owner of the Property, Marion Trust & Banking Company. In 1989, Marion Trust & Banking sold the Property to the Town of Powell's Crossroads, a municipality, with the Restrictive Covenant being contained in that warranty deed. The relevant portions of the warranty deed for the 1989 conveyance are as follows: MARION TRUST & BANKING COMPANY, has this day bargained and sold, and does hereby sell, transfer and convey unto TOWN OF POWELL'S CROSSROADS, its successors and assigns, the following described real estate situated in the Third Civil District of Marion County, Tennessee, and more particularly described as follows, to-wit: ******** RESTRICTION: This property may not be used by any financial institution as a place of business for a period of twenty-five (25) years from the date hereof. The Restrictive Covenant immediately follows the description of the Property and a clause setting forth an exception to the property description. Thereafter, the Property was conveyed three more times before the conveyance to Plaintiff in 1998. Throughout these conveyances, the Restrictive Covenant remained in the chain of title, albeit with a few changes. After the initial conveyance in 1989, the Property was acquired in 1996 by NPF X, Inc., by warranty deed which contained the verbatim language of the Restrictive Covenant. Later that same year, the Property was sold to Star Health Services, Inc., and the property description attached to the warranty deed contained a restriction which was identical to the Restrictive Covenant except that it stated "a financial institution" instead of "any financial institution." In 1997, Eddie and Pamela Mooneyham bought the Property by special warranty deed which contained a restriction identical to the one found in Star Health's warranty deed, except that it stated that the 25-year restriction began running on the date of the most recent transfer in October,1996. 2  In 1998, Plaintiff purchased the Property from the Mooneyhams who are not a party to this litigation. Plaintiff's warranty deed, in pertinent part, states as follows: WE, EDDIE D. MOONEYHAM and wife, PAMELA J. MOONEYHAM, do hereby sell, transfer and convey unto GENERAL BANCSHARES, INC., a Tennessee Corporation its successors and assigns, the following described real estate, situated in the Third Civil District of Marion County, Tennessee, and more particularly described as follows, to-wit: ******** RESTRICTIONS: This property may not be used by a financial institution as a place of business for a period of Twenty-five (25) years from the date of the conveyance from Marion Trust & Banking Company to the Town of Powell [sic] Crossroads dated April 12, 1989, and recorded on July 10, 1990, in Deed Book 141, Pages 217, et seq., Register's Office of Marion County, Tennessee. As in the 1989 warranty deed, the Restrictive Covenant immediately follows the description of the Property. Plaintiff and Defendant each filed a Motion for Summary Judgment. The Trial Court granted Defendant's Motion for Summary Judgment. Plaintiff appeals. Discussion On appeal, Plaintiff argues that the Restrictive Covenant is not enforceable for the following reasons: 1) the Restrictive Covenant itself does not contain the "successors, and assigns" language; 2) the restriction does not run with the land because it does not confer a corresponding benefit on another particular parcel of land; 3) the restriction is not enforceable as an equitable servitude because the Property is not part of a common development plan; and 4) Defendant is not a third party beneficiary to the Restrictive Covenant because the Mooneyhams did not intend to benefit Defendant with the restriction contained in the 1998 warranty deed. Defendant does not dispute the Trial Court's decision. Defendant contends that the plain language of the Restrictive Covenant and the format of the 1989 warranty deed is proof of the intent of the original grantor and grantee to bind remote grantees such as Plaintiff. Defendant also argues that the Restrictive Covenant is enforceable against Plaintiff because Plaintiff had actual notice of the restriction and because the Restrictive Covenant was in the chain of title. Alternatively, 3 Defendant argues that the Restrictive Covenant is enforceable as an equitable servitude. Our Supreme Court outlined the standard of review of a motion for summary judgment in Staples v. CBL & Assoc., 15 S.W.3d 83 (Tenn. 2000), as follows: The standards governing an appellate court's review of a motion for summary judgment are well settled. Since our inquiry involves purely a question of law, no presumption of correctness attaches to the lower court's judgment, and our task is confined to reviewing the record to determine whether the requirements of Tenn. R. Civ. P. 56 have been met. See Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn.1997); Cowden v. Sovran Bank/Central South, 816 S.W.2d 741, 744 (Tenn.1991). Tennessee Rule of Civil Procedure 56.04 provides that summary judgment is appropriate where: (1) there is no genuine issue with regard to the material facts relevant to the claim or defense contained in the motion, see Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn.1993); and (2) the moving party is entitled to a judgment as a matter of law on the undisputed facts. See Anderson v. Standard Register Co., 857 S.W.2d 555, 559 (Tenn.1993). The moving party has the burden of proving that its motion satisfies these requirements. See Downen v. Allstate Ins. Co., 811 S.W.2d 523, 524 (Tenn.1991). When the party seeking summary judgment makes a properly supported motion, the burden shifts to the nonmoving party to set forth specific facts establishing the existence of disputed, material facts which must be resolved by the trier of fact. See Byrd, 847 S.W.2d at 215. To properly support its motion, the moving party must either affirmatively negate an essential element of the non-moving party's claim or conclusively establish an affirmative defense. See McCarley v. West Quality Food Serv., 960 S.W.2d 585, 588 (Tenn.1998); Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn.1997). If the moving party fails to negate a claimed basis for the suit, the non-moving party's burden to produce evidence establishing the existence of a genuine issue for trial is not triggered and the motion for summary judgment must fail. See McCarley v. West Quality Food Serv., 960 S.W.2d at 588; Robinson v. Omer, 952 S.W.2d at 426. If the moving party successfully negates a claimed basis for the action, the non-moving party may not simply rest upon the pleadings, but must offer proof to establish the existence of the essential elements of the claim. The standards governing the assessment of evidence in the summary 4  judgment context are also well established. Courts must view the evidence in the light most favorable to the nonmoving party and must also draw all reasonable inferences in the nonmoving party's favor. See Robinson v. Omer, 952 S.W.2d at 426; Byrd v. Hall, 847 S.W.2d at 210-11. Courts should grant a summary judgment only when both the facts and the inferences to be drawn from the facts permit a reasonable person to reach only one conclusion. See McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn.1995); Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.1995). Staples, 15 S.W.3d at 88-89. The record before us contains no genuine issues of material fact. The parties do not dispute that the Restrictive Covenant is found in the 1989 warranty deed and again in the 1998 warranty deed. The parties do not dispute the language or format of the warranty deeds. The Restrictive Covenant at issue is a "property [interest] that run[s] with the land." Maples Homeowners Ass'n v. T&R Nashville Ltd. P'ship, 993 S.W.2d 36, 38 (Tenn. Ct. App. 1998). It is true that Tennessee law does not favor restrictions on the free use of real property by private owners. Hicks v. Cox, 978 S.W.2d 544, 548 (Tenn. Ct. App. 1998); Hillis v. Powers, 875 S.W.2d 273, 275 (Tenn. Ct. App. 1993). However, this Court has held that restrictive covenants will be enforced under certain circumstances, holding that: the courts will uphold covenants running with the land where the intent of the parties to bind their remote successors can be determined by the language of the covenant and the circumstances of its making. Hillis, 875 S.W.2d at 275 (citations omitted). In explaining the analysis that courts must make when asked to enforce a restrictive covenant, this Court held that: [t]he court is required to give a fair and reasonable meaning to restrictive covenants in order to determine the parties' intention and once the intention of the parties is ascertained, the covenant will be enforced, provided it serves a legitimate purpose and does not constitute a nuisance per se. Jones v. Englund, 870 S.W.2d 525, 529 (Tenn. Ct. App. 1993) (quoting Waller v. Thomas, 545 S.W.2d 745, 747 (Tenn. Ct. App. 1976)). As a general rule, courts will strictly construe restrictive covenants. Hicks, 978 S.W.2d at 548. When interpreting unambiguous restrictive covenants, courts are to give the words of the covenant their "usual and ordinary meaning." Id. at 547. This Court has held that: [Restrictions on land] arise . . . from a series of overlapping 5  contractual transactions . . . . Accordingly, they should be viewed as contracts, . . . and they should be construed using the rules of construction generally applicable to the construction of other contracts. Maples Homeowners Ass'n, 993 S.W.2d at 39 (citations omitted). If the restrictive covenant is "'reasonable and unambiguous, there is no need to seek further clarification outside its language.'" Hicks, 978 S.W. 2d at 548 (quoting Shea v. Sargent, 499 S.W.2d 871, 874 (Tenn. 1973)). However, if the language in a restriction is ambiguous, the courts will construe that provision against the drafter of the restriction. Hillis, 875 S.W.2d at 275-76 (citation omitted). We reject Plaintiff's contention that the Restrictive Covenant does not apply to remote grantees because the clause itself does not contain "successors and assigns" language. We hold that the plain language of the Restrictive Covenant is unambiguous and clearly indicates the intent of the original parties to bind successors and assigns like Plaintiff. See Hicks, 978 S.W.2d at 548 (holding that "the overriding factor is the intent of the parties”). The "successors and assigns" language in the 1989 warranty deed is found in the sentence immediately preceding a large, fully-indented portion of the warranty deed which is set off by a colon. Contained in this fully-indented section is: 1) a description of the Property; 2) an exception to the property description; 3) the Restrictive Covenant; and 4) a reference to a previously-recorded deed regarding the same Property. The placement of the Restrictive Covenant within the umbrella of the colon clearly shows that the original parties intended for the "successors and assigns" language to be a part of the Restrictive Covenant. The plain language of the Restrictive Covenant indicates that the original grantor and grantee intended for it to apply to remote grantees. The Restrictive Covenant prohibits "any financial institution" from using the Property as a place of business "for a period of twenty-five (25) years from the date hereof." When coupled with the format of the warranty deed, the "clear and ordinary meaning" of this language clearly indicates that the intent of the original parties was to bind remote grantees such as Plaintiff to the Restrictive Covenant. See Hicks, 978 S.W.2d at 548. Moreover, the language of the restriction in the 1998 warranty deed is proof that Plaintiff understood that the Restrictive Covenant applied to it as a remote grantee. Plaintiff's deed clarified the date of the beginning of the twenty-five year term, stating, in pertinent part, as follows: "for a period of twenty-five (25) years from the date of the conveyance from Marion Trust & Banking Company to the Town of Powell Crossroads dated April 12, 1989 . . . ." As discussed, the deeds between the 1989 and 1998 conveyances did not make this point clear. Although this clarifying language cannot be used to show the intention of the original parties, it is proof that Plaintiff understood the plain language of the Restrictive Covenant to bind the successors and assigns of the original grantee. In support of its argument that to run with the land and bind remote grantees, the Restrictive Covenant itself must contain the “successors and assigns” language, Plaintiff relies heavily upon two decisions, Lowe v. Wilson, 250 S.W.2d 366 (Tenn. 1952), and Essary v. Cox, 844 6 S.W.2d 169 (Tenn. Ct. App. 1992). Plaintiff’s argument fails because the restrictive covenants in those cases are readily distinguishable from the one at issue. Our Supreme Court in Lowe found that a covenant which forbade the sale of intoxicating beverages was not enforceable against remote grantees because it “did not specifically bind the heirs and assignees of the grantees.” Lowe, 250 S.W.2d at 368. The restrictive clause in Lowe is as follows: It is hereby agreed and understood between the parties hereto that no beer, beverages, or intoxicants of any kind or character shall ever be sold upon the lot or parcel of land herein conveyed, and this agreement is a part of the consideration for this sale. Id. (emphasis added). The Lowe court held that the language of the restriction showed that this clause was merely a personal agreement between the original parties. Id. at 368. Similarly, this Court in Essary v. Cox found that a restriction which forbade the sale of oil and gas supplies was not enforceable against remote grantees because the language showed that it was a personal agreement between the original grantors and grantees. Essary, 844 S.W.2d at 172. The restriction in Essary states as follows: It is expressly understood and agreed that the above-described premises shall not be used for the purpose of any sales of oil and gas supplies or products. Id. at 170 (emphasis added). Unlike the restrictions found in Lowe and Essary, the plain language of the Restrictive Covenant in this matter does not indicate solely a personal agreement between the original parties. In contrast, the Restrictive Covenant contains broader language such as “any financial institution . . . .” Additionally, the Restrictive Covenant binds remote grantees since, as discussed, it is part of the sentence that contains the "successors and assigns" language. We also reject Plaintiff’s argument that under the facts of this case, the Restrictive Covenant, to be binding, must benefit another specific tract of land. Plaintiff concedes that there is no Tennessee case law which directly supports this argument, and we do not find the authority cited by the Plaintiff to be persuasive. But see Ridley v. Haiman, 47 S.W.2d 750, 755 (Tenn. 1932) (citation omitted) (discussing the rule that restrictive covenants are enforceable where the common vendor intended that the restriction would benefit all of the parcels of land of a subdivision); Leach v. Larkin, No. 919193, 1993 WL 377629, at * 3 (Tenn. Ct. App. Sept. 24, 1993) (citations omitted) (holding that a property owner who subdivides and sells parts of a tract of land may include restrictive covenants which benefit both the property owner and the purchasers of the subdivided portions of the tract). While disagreeing with Plaintiff’s assertion that the Restrictive Covenant must benefit another particular tract of land to be enforceable, Defendant argues that the Restrictive Covenant does benefit other tracts of land owned by Defendant and its predecessor. Affidavits submitted by Plaintiff in support of its Motion for Summary Judgment show that Defendant and its predecessor own other land used for banking purposes. The intention of the original parties is clear from the language of the 1989 Warranty Deed, and that intention was to prohibit any financial institution from using the property as a place of business. Although Defendant’s properties owned 7 at the time of the 1989 deed and at the time of the lawsuit are not adjacent to the Property, the intention of the parties to protect those properties from any financial institution being operated on the Property is clear. Accordingly, we hold that the Restrictive Covenant is enforceable against Plaintiff and that the Trial Court did not err in granting summary judgment to the Defendant. Additionally, in light of our holding, we find Plaintiff's argument concerning whether Defendant is a third-party beneficiary to the Restrictive Covenant to be moot. Likewise, our holding renders it unnecessary to address Plaintiff’s argument that the restriction is not enforceable as an equitable servitude because the property is not part of a common development plan. Conclusion The judgment of the Trial Court is affirmed, and this matter remanded for further proceedings as may be required, if any, consistent with this Opinion, and for collection of the costs below. Costs of this appeal are taxed to the Appellant, General Bancshares, Inc., and its surety. ___________________________________ D. MICHAEL SWINEY, JUDGE 8 

962 A.2d 1197 (2008) COM. v. WELK. No. 485 MAL (2008). Supreme Court of Pennsylvania. December 17, 2008. Disposition of petition for allowance of appeal. Denied.

543 U.S. 937 WARDv.BARRON, WARDEN. No. 04-6097. Supreme Court of United States. October 12, 2004. 1 C. A. 6th Cir. Certiorari denied. Reported below: 93 Fed. Appx. 41.

300 So.2d 401 (1974) In re Kathe E. TAPLEY, Plaintiff, v. LIBERTY SUPER MARKETS OF BIRMINGHAM, Alabama, Defendant. Ex parte William T. TARPLEY, Petitioner. 6 Div. 602. Court of Criminal Appeals of Alabama. January 15, 1974. Rehearing Denied March 5, 1974. *402 Douglas, Arant, Brittin T. Coleman, Birmingham, for petitioner. Russell T. McDonald, Jr. and Michael W. McCormick, Birmingham, for respondent. HARRIS, Judge. Petitioner was adjudged guilty of contempt of court for failing to appear as a witness for the plaintiff in the above styled civil action in the Circuit Court of Jefferson County and was sentenced to four (4) days confinement in the Jefferson County Jail. We granted certiorari to review the findings and judgment of the trial court. This is a first impression case in this State as it deals with an "on call" civil subpoena. It is a case of extreme importance to the trial courts especially in the metropolitan areas of the State, the trial bar, local bar associations and the medical association or local medical societies. The factual background of this case is necessary to an understanding of our decision. On June 28, 1972, Kathe E. Tapley filed a complaint for damages against Liberty Super Markets of Birmingham in the Circuit Court for the Tenth Judicial Circuit *403 of Alabama. On May 21, 1973, petitioner was served with a subpoena issued by the plaintiff. The subpoena directed the sheriff to summon petitioner to appear before the Civil Division of that court on June 11, 1973, at 8:45 A.M. and continue from day to day thereafter until discharged. The subpoena contained the following: "William T. Tarpley, M.A. (On Call), 1023 South 20th Street, Birmingham, Alabama." Petitioner is an orthopedic surgeon actively engaged in the practice of medicine in Birmingham. For a number of years an agreement has been in effect between the Birmingham Bar Association and the Jefferson County Medical Society which provides that the attorney for a party to a civil action who causes a doctor to be subpoenaed will communicate with the doctor in advance of trial and keep the doctor advised as to when the case will be tried. This is usually done by the attorney's secretary calling the doctor's secretary. Sometimes there is a direct call from the attorney to the doctor. The doctor then makes his arrangements to appear in court. The underlying purpose of this agreement is to avoid having a doctor wait in the witness room at the courthouse when he could be treating patients in his office or in the hospitals. This agreement has the sanction of the circuit judges in Birmingham and in other circuits throughout the State where there are similar agreements between local bars and medical societies. All trial courts and the trial bar know that civil cases are often settled after a jury is struck and sometimes after the case has been tried a half a day or even several days and a doctor has not been called to come to court. Cases have been settled while the doctor was enroute to the courthouse in response to a call. The case of Tapley v. Liberty Super Markets was called for trial on June 12, 1973, in Judge Ingram Beasley's courtroom and the trial got underway on the morning of June 13, 1973. On June 12 Mr. Clay Alspaugh, one of the attorneys for the plaintiff, telephoned petitioner with regard to him testifying on June 13 at 9:00 A.M. Petitioner informed the attorney that he had surgery scheduled that morning and could not cancel it. The attorney then asked petitioner if he could come at 1:30 P.M. on June 13 and petitioner said he would be present in court to testify at 1:30 P.M. unless something unforeseen occurred. The attorney told petitioner that if he finished surgery earlier than expected on June 13, 1973, to call him and possibly petitioner could be put on the stand before 1:00 P.M., but surgery was not completed until around 12:30 P.M. and petitioner did not call the plaintiff's attorney. Petitioner's partners had been out of town for two weeks and he had forty-six (46) patients in the hospital to see. Early in the afternoon of June 13, petitioner was at Shelby Memorial Hospital in Alabaster, Alabama. When he finished at Shelby Memorial Hospital, he had to go to Brookwood Hospital in Birmingham where he arrived at about 4:30 P.M. He got home on the afternoon of June 13, 1973, at about 5:45 P. M. At 3:00 P.M. on June 13, Judge Beasley adjourned court because of the absence of petitioner. In an effort to assure petitioner's presence in court at 9:00 A.M., June 14, 1973, Judge Beasley issued an attachment for him. This attachment was delivered to the office of the Sheriff of Jefferson County by one of Judge Beasley's clerks. At 9:00 A.M. on June 14, the petitioner was not in court and in checking on it, Judge Beasley found that the attachment had never been served on petitioner. Thereupon a mistrial was declared and the Sheriff was ordered to "appear before this court at 9:00 A.M. on Friday, June 15, 1973, and bring with him all clerks and deputies who in any way processed or handled or attempted to process or handle or who had anything to do with the receipt, execution or handling of the writ of attachment issued to him pursuant to the above order on June 13, 1973." The civil subpoena clerk in the Sheriff's Department received the writ of attachment *404 about 3:10 P.M. on June 13 and put it on the desk of a Lt. Fordum who was in command of the 4:00 P.M. to midnight shift. Somehow the writ of attachment got misplaced by a deputy and did not reach the serving deputy until around 9 or 10:00 P.M. and because of the lateness of the hour, it was decided not to serve it on petitioner at his home. These facts were made known to Judge Beasley after he had declared a mistrial at 9:00 A.M. on June 14, 1973. Judge Beasley then ordered the sheriff to arrest petitioner and put him under a fifty-dollar bond conditioned to appear before him at 9:00 A.M. on June 15, 1973. When this bond was presented to petitioner by a deputy sheriff, petitioner requested permission to make a copy of it and the deputy told him that he had an attachment for him and he could also make a copy of it. This was petitioner's first knowledge that an attachment had been issued for his appearance in court on June 14, 1973, at 9:00 A.M. The fifty-dollar-appearance bond was to answer a criminal prosecution for the offense of defaulting witness (Judge Beasley's Court). The order calling for the issuance of the attachment is in words and figures as follows: "6-13-73 Dr. William T. Tarpley having been subpoenaed as a witness in this case and failing or refusing to appear as directed the Clerk of this Court is hereby directed to issue a writ of attachment directing the Sheriff of Jefferson County to attach the person of the said Dr. William T. Tarpley and produce him in person before this Court on June 14, 1973 at 9:00 o'clock A.M. Ingram Beasley, Judge." The clerk handling civil subpoenas in the clerk's office in issuing the attachment omitted the words and figures: "at 9:00 o'clock A.M." This left the word "(INSTANTER)" on the printed form to denote the time element. At the hearing in this case, the trial court took note of this omission but went on to say that "Instanter means right now, instantly. That's what the word means, instantly. It's a matter of cooperation between the court and the sheriff's department. I don't have to keep putting everybody in jail. I attach them because I want to impress upon them that I need them and want them in court at that time. If he had been served, we would have tried this case and we would have had a verdict. It would have been over and done with. As it is, of course we're going to have to try it over again, and I think if the doctor had been called on the telephone, he would have been here. People in that position are not trying to evade law when they know what they're doing." After petitioner had made his sworn explanation to the court, and after the testimony of three of the sheriff's deputies, and after an unsworn statement of the sheriff extolling the virtues of his office as follows: "The policy and procedure, Judge Beasley, that I have instigated in the sheriff's office over the past ten years is that each paper is treated individually and with importance, and that we do not sluff some aside that we might think are important or others that we might think aren't, and I think our performance is such that we would like to say we had one hundred percent service, and those that we do not include in the effort of striving for that goal we show not found, or some other reason why not served. I think our office is to be criticized in this matter, because we did receive the paper as I am advised by Chief Belcher. On attachments, we normally get a flier stapled or gem clipped to the order denoting the urgency of the matter, but I think like the court does that attachments carry the urgency with the word itself, and yet even at the late hour of ten or later we very well might or should have awakened the doctor, but our policy is to get these papers out there, and the men here have a full heavy load of papers, and in this instance *405 we're somewhat on the mercy of the court for not handling it expeditious, as it appears the court wishes for the sake of the case at hand." Judge Beasley determined that there were extenuating circumstances with reference to the execution of the Writ of Attachment and that he was not going to take any kind of action against the sheriff's department. As to petitioner, Judge Beasley said: "There's not much extenuating circumstances as far as Dr. Tarpley is concerned, and Dr. Tarpley, I feel it is my duty to hold you in contempt as a defaulting witness, and sentence you to four days in jail. I have the power to make it five, and I have the power to fine you up to fifty dollars * * * *". Upon being advised that petitioner had filed a petition in this court for a writ of certiorari, Judge Beasley made an order staying his decree pending a final determination of said petition. Petitioner strenuously insists that he is not guilty of any contempt for two reasons: (1) an "on call" subpoena is in essence no subpoena in law because the commandment to appear in court depends on too many variables and the commandment per se is thus neutralized, and (2) if he is guilty of contempt at all it is constructive contempt and not direct contempt committed in the presence or face of the court authorizing summary punishment. An "on call" subpoena in and of itself denotes flexibility in the commandment to appear. We have been furnished with excellent briefs from all parties involved in this case. However, we have been cited to no case, nor has our research led us to one, which has dealt with an "on call" subpoena in contempt of court cases. This dearth of authority is due, no doubt, to the fact that this method of summoning witnesses to court is not a wide spread practice. Contempt has been with us a long time and came from the Common Law of England. Summary punishment for contempt does not extend to any other cases than those set forth in Title 13, Section 2, Code of Alabama 1940. Disobedience of process of the court is categorized as constructive or indirect contempt and not direct contempt in Dangel, Contempt, 7, Section 14: "A direct contempt consists of disorderly or insolent behavior committed during the session of the court, and in its immediate view and presence, such as the unlawful and willful refusal of any person to be sworn as a witness, or the refusal to answer any legal or proper question, or the giving of false testimony, or any breach of the peace, noise or disturbance so near to the court as to interrupt its proceedings. An indirect contempt, sometimes called a `constructive contempt', may consist of willful disobedience of any process or order lawfully issued or made by the court and resistance willfully offered by any person to the execution of a lawful order or process of the court." (Emphasis in original). Both State and Federal courts have dealt with this subject extensively and have applied constitutional standards in approaching contempt proceedings. The application of due process and the Sixth Amendment to contempt proceedings were first discussed in Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767. This opinion guarantees a person alleged to be in contempt of court be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses in his behalf, either in defense or explanation. In the cases of Re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682; and Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 459, 27 L.Ed.2d 532, the Supreme Court reaffirmed the above rule recognizing a distinguishable category of circumstances where the above procedures are not mandatory. *406 The excepted instances include charges of misconduct, in open court, in the presence of the judge, which disturbs the court's business, where all of the essential elements of the misconduct are under the eye of the court, are actually observed by the court, and where immediate punishment is essential to prevent demoralization of the court's authority before the public. In Oliver, supra, the court specifically stated if some of the essential elements of the offense are not personally observed by the judge and he must depend upon statements made by others to supply his knowledge as to such essential elements, due process requires reasonable prior notice and the opportunity to be heard in person and with his witnesses at a fair hearing. At common law and under statutes courts may summarily punish for direct contempts. In such cases the personal knowledge of the court in whose presence the act was committed takes the place of evidence. If the act is committed outside the presence of the court the procedure requires that the contemnor be notified of the contempt charge and the nature thereof and that he be given an opportunity to be heard thereon before he may be punished therefor. As succinctly stated in Harris v. United States, 382 U.S. 162, 86 S.Ct. 352, 15 L.Ed.2d 240: "Summary procedure, to use the words of Chief Justice Taft, was designed to fill `the need for immediate penal vindication of the dignity of the court.' * * * [T]he limits of the power to punish for contempt are `[t]he least possible power adequate to the end proposed.' In the instant case, the dignity of the court was not being affronted: no disturbance had to be quelled; no insolent tactics had to be stopped." The courts of Alabama have had many occasions to treat this sometimes troublesome problem. In Ex parte Hennies, 33 Ala.App. 377, 34 So.2d 22, Judge Harwood (now Justice Harwood) observed: "A criminal contempt may be either direct or constructive. In many situations the line of demarcation between direct and constructive contempt is tenuous. A beclouding over-refinement may be found in some of the cases. "Basically, a direct contempt is one committed within the presence of the court while in session, or so near to the court as to interrupt its proceedings. Rapalje on Contempts, Section 22. "Whenever there is doubt as to the character of the alleged contempt, that is, whether it is direct, or constructive, the doubt should be resolved in favor of it being constructive, especially where the contempt charged is a criminal contempt. Ex parte Redmond, 159 Miss. 449, 132 So. 328. "We are clear to the conclusion that under the facts of this case this petitioner's conduct did not constitute a direct contempt. It results therefore that the contempt, if any, must be deemed constructive. "Assuming, but not deciding, that a constructive contempt has been committed by this petitioner, has the sentence been imposed on him by due process of law? We think not. In the opinion on the rehearing in the case of Ex parte Bankhead, 200 Ala. 102, 75 So. 478, Chief Justice Anderson wrote: "`We laid down the rule in the foregoing opinion that, in order to punish for a constructive contempt, the offending party should have notice of the nature of the charge against him and be given an opportunity to answer and defend himself, and that this was generally done by a rule to show cause.' "The above we think decisive of this case in which there is a complete absence of fundamental procedures prior to the imposition of the sentence, and to which petitioner was entitled." *407 In Hunter v. State, 251 Ala. 11, 37 So.2d 276, the Supreme Court laid down the law as to the procedure that must be followed in a constructive contempt proceeding. There the court said: "There is no statutory or constitutional provision directing the procedure by which a constructive criminal contempt shall be begun. "But since it involves the power of the court to find and imprison and sometimes to arrest the accused, the requirements of the Constitution affecting those incidents have application. "Sometimes a constructive contempt is begun by issuing a warrant of arrest requiring the accused to be held and be heard on the charge. Sometimes it is begun by issuing a citation or rule to him to appear and answer the charge. "If it is begun by issuing a warrant for his arrest, the requirements of § 5 of the Constitution must be observed. Section 5 provides that no warrant shall issue to seize any person without probable cause supported by oath or affirmation. So that if a warrant is issued for his arrest prior to his trial on the charge, it should be supported by such oath or affirmation as affords probable cause for doing so. "But when it is begun by a citation to appear and make defense, it is sufficiently begun and the proceedings are valid if due process is satisfied in § 6 and the 14th Amendment to the Federal Constitution. "Due process requires that the accused shall be advised of the charges, and have a reasonable opportunity to meet them. This includes the assistance of counsel, if requested, the right to call witnesses, to give testimony, relevant either to the issue of complete exculpation or extenuation of the offense and in mitigation of the penalty imposed. Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 69 L. Ed. 767; Ex parte Bankhead, 200 Ala. 102, 75 So. 478; Dangel on Contempt 209, § 446. "This does not mean that a written accusation is not essential. But it need not be verified except to support a warrant of arrest under § 5, supra. But the form of it is not material if it sets out the charges in such manner as to apprise him of the exact nature of it, and what he is called upon to defend." In this case no warrant was issued for the alleged contemnor's arrest supported by an affidavit denoting probable cause. No citation or rule was issued and served upon petitioner containing a specification of contempt charges so as to conform to the due process requirements of notice and an opportunity to defend. When we come to examine the judgment in this case, we must conclude that the trial court was without jurisdiction to proceed in the manner he did and that the judgment is void on its face. An attachment was issued for petitioner but never served. The court stated emphatically that if the sheriff's deputies had served the attachment, or even called petitioner on the telephone, petitioner would have been in court at 9:00 A.M. on June 14, 1973, and the case would have gone on to a conclusion and a verdict rendered. Judge Beasley is one of the most astute and conscientious judges to grace the circuit bench. It is understandable that he was upset, disturbed and perturbed in being forced to declare a mistrial because of the absence of the plaintiff's doctor. The plaintiff was certainly entitled to have her case tried on the date it was set. Judge Beasley knew that it takes at least twelve months to get a civil case tried from the time it is filed in Jefferson County, and about six more months to get a resetting after a mistrial is declared. In his zeal in attempting to right a wrong, the judge unwittingly committed another wrong. Petitioner appeared before Judge Beasley at 9:00 A.M. on June 15, 1973, not because *408 of a warrant of arrest, nor in answer to the rule nisi, but to answer a "prosecution for the offense of a defaulting witness". The penalty for a defaulting witness is controlled by Title 7, Section 452, Code of Alabama 1940, which provides as follows: "Any witness who, after being subpoenaed, fails to attend pursuant to the mandate of the subpoena and remain until his testimony is given, or he is discharged, forfeits one hundred dollars to the use of the party summoning him; and the attendance of such witness may be compelled by attachment." The word "contempt" was never mentioned until the hearing was concluded on June 15, 1973. Petitioner was then called before Judge Beasley and summarily punished for contempt of court. In the light of Ex parte Hennies, supra, and Hunter v. State, supra, this conviction cannot stand. There are other instances of error but in view of the conclusion we have reached it is not necessary that we treat them. It is, therefore, ordered that the judgment of the court below holding this petitioner in contempt is reversed, and it is further ordered that the petitioner be discharged in this proceeding. Writ granted. Judgment below is reversed and rendered. Writ granted. Judgment below reversed and rendered. CATES, P. J., ALMON and TYSON, JJ., concur. DeCARLO, J., dissents. ON REHEARING Respondent has made timely application for rehearing and attached his personal affidavit thereto for consideration by this Court. Admittedly this affidavit was not a part of the proceedings before him on June 15, 1973. He states that an affidavit was filed by one of the attorneys for the plaintiff in the civil action in which a mistrial was declared because of the absence of petitioner as a witness for the plaintiff which also was not a part of the trial proceedings and that a motion was filed in this Court to strike such affidavit on that ground. This is true. The affidavit of plaintiff's attorney was filed on June 21, 1973, six days after petitioner was adjudged in contempt of court. The motion to strike this affidavit was filed in this Court on June 28, 1973. We did not act on the motion to strike, one way or another. Since that affidavit was not before respondent at the June 15, 1973, hearing, we simply chose to lay it aside and we gave absolutely no consideration to that affidavit in our decision in this case. For the same reason we are forced to lay aside the affidavit of respondent attached to the application for rehearing. We adhere to our original decision in this case and overrule the application for rehearing. Opinion extended and application for rehearing overruled. CATES, P. J., and ALMON and TYSON, JJ., concur. DeCARLO, J., dissents.

78 Ill.2d 353 (1980) 399 N.E.2d 1295 MORTON GROVE PARK DISTRICT v. AMERICAN NATIONAL BANK AND TRUST COMPANY, Trustee, et al., Appellants (Edward J. Rosewell, County Treasurer, Appellee). No. 51698. Supreme Court of Illinois. Opinion filed January 23, 1980. *354 *355 *356 *357 Earl L. Neal, of Chicago, for appellant. Bernard Carey, State's Attorney, of Chicago (Paul P. Biebel, Jr., Deputy State's Attorney, and Mercer Cook and Michael F. Baccash, Assistant State's Attorneys, of counsel), for appellee. Reversed and remanded. MR. JUSTICE RYAN delivered the opinion of the court: American National Bank and Trust Company of Chicago and others (hereinafter referred to as defendants or the condemnees), appeal from an order denying them the income earned on a condemnation award deposited with the treasurer of Cook County, by the condemnor, Morton Grove Park District (Morton Grove), during the time that expired while the condemnees appealed the amount of the award. It is now contended that denying the condemnees the income earned on the money deposited with the treasurer constitutes a taking without just compensation in violation of the Illinois and United States constitutions. The facts of the case are undisputed. Defendants were the title owners of several parcels of real property in Morton Grove. The park district (not a party to this appeal) filed a petition to condemn the property on December 11, 1972, pursuant to the Eminent Domain Act (Ill. Rev. Stat. 1971, ch. 47, par. 1 et seq.). A jury found the fair market value of the property to be $1 million, and a judgment was entered on the verdict on January 31, 1974. The award, plus $15,478.06, the statutory interest on the award from the date of the judgment until the date of deposit, was deposited by the park district with the county treasurer on April 29, 1974. Pursuant to section 13 of the Act (Ill. Rev. Stat. 1973, ch. 47, par. 13), the court entered an order on May 9, 1974, placing the park district in possession of the *358 land. The order also required a $200,000 surety bond to secure the payment of such compensation as may be finally adjudged as provided in section 13. Defendants appealed the amount of the award. During the appeal the park district had the possession and use of the condemned property and the treasurer of Cook County held the award. The appellate court affirmed both the determination of value and order transferring possession to the park district pursuant to section 13 of the Act. (Morton Grove Park District v. American National Bank & Trust Co. (1976), 39 Ill. App.3d 426.) This court denied leave to appeal. Defendants then petitioned the trial court for an order upon the county treasurer to pay out the $1,015,478.06 plus interest earned thereon from the date it was deposited until the date of payment to defendants. The award had earned $92,357.08 through investment by the county treasurer. The trial court ordered the $1,015,478.06 paid to defendants on November 10, 1976, but denied defendants' petition for payment of the earnings on the award. The appellate court affirmed the trial court's decision. (67 Ill. App.3d 709.) We allowed defendants' petition for leave to appeal. It is agreed that the award earned $92,357.08. After just compensation has been determined in a condemnation suit, an award earns interest from the time the judgment is entered until the condemnor pays the award to the county treasurer. When the award, and any statutory interest that has accrued, are deposited with the treasurer, as provided in section 14 of the Act (Ill. Rev. Stat. 1973, ch. 47, par. 14), the statutory and constitutional requirements of just compensation for the property taken are satisfied. (Department of Public Works & Buildings v. Butler Co. (1958), 13 Ill.2d 537, 546.) Section 13 of the Act provides that when the party in whose favor an award has been entered appeals, the condemnor shall, notwithstanding, have the right to use the property upon entering into a bond conditioned on the payment of such *359 compensation as may be finally adjudged. Pursuant to section 13, the trial court in this case entered an order authorizing the park district to take possession of the property upon the filing of a bond in the amount of $200,000, conditioned as required by that section. When the award was paid to the county treasurer and the bond filed as ordered, title to the condemned property vested in the park district and related back to the filing of the petition to condemn. (Chicago Park District v. Downey Coal Co. (1953), 1 Ill.2d 54, 57; Accord, County of Cook v. Vander Wolf (1946), 394 Ill. 521, 528; Forest Preserve District v. Chicago Title & Trust Co. (1932), 351 Ill. 48, 55.) When the park district deposited the award with statutory interest and filed the required bond, the requirement of just compensation from the condemnor with respect to the owners was satisfied. The income earned on the deposited monies should not therefore be considered as additional compensation from the condemnor for the property taken. The park district did all that was required, and its obligation to defendants ended when it made the deposit with the county treasurer and filed the required bond. The owner of condemned property has a constitutional and statutory right to appeal a judgment in an eminent domain case. (Ill. Const. 1970, art. VI, sec. 6; Ill. Rev. Stat. 1971, ch. 47, par. 12.) However, under sections 10(a) and 14 of the Eminent Domain Act (Ill. Rev. Stat. 1971, ch. 47, pars. 10(a), 14) the condemnee's award is deposited with the county treasurer during the course of an appeal from an award and the money may not be withdrawn by the owner without abandoning all objections to the award, that is, abandoning the appeal. (See County of Cook v. Malysa (1968), 39 Ill.2d 376, 379, where the court stated that eminent domain adheres to the general rule in civil cases that when a judgment has been voluntarily paid or its benefits accepted the question becomes moot.) Thus, the condemnor can terminate its obligation *360 to the owner for interest on the award by paying the amount thereof, plus accrued interest, to the county treasurer, and can divest the owner of the property and enter into possession. However, the owner may not exercise the statutory and constitutional right to appeal without forfeiting the right to use the amount of the award pending the appeal. In Moll v. Sanitary District (1907), 228 Ill. 633, the court stated that a condemnee who appeals an award and prevails is entitled on retrial to have submitted to the jury empaneled to fix just compensation the claim for interest for the time the condemnee was deprived of possession of his property, as an additional element of compensation. In dicta, relied on by the county treasurer, the court stated that if the appeal had been unsuccessful the condemnee would not be entitled to interest because the loss of the appeal demonstrates that he should have accepted the award and not appealed. Moll was decided under the Illinois Constitution of 1870, which did not grant an absolute right to appeal until it was amended in 1962. However, in the present case there is a constitutional right to appeal. Also, here the owners are seeking to recover the money the award earned while held by the county treasurer, and not interest on the award as an additional element of just compensation for the land taken. In Illinois the payment of money to the county treasurer acts as a substitute for the condemned property under section 14 of the Eminent Domain Act. (Forest Preserve District v. Chicago Title & Trust Co. (1932), 351 Ill. 48, 55; Department of Public Works & Buildings v. Porter (1927), 327 Ill. 28, 34.) The funds held by the county treasurer pursuant to section 14 are private funds belonging to the condemnees, and as the treasurer admits in his brief, the condemnees may withdraw them at any time as long as they are willing to forgo appeal. (County of Cook v. Vander Wolf (1946), 394 Ill. 521, 528.) Defendants contend they are entitled to the money earned on the *361 deposit. Concerning the earnings of money deposited with the county treasurer the legislature has provided: "All earnings accruing on any investments or deposits made by the County Treasurer whether acting as such or as County Collector, of county monies as in this Act is defined, shall be credited to and paid into the County Treasury for the Benefit of the county corporate fund to be used for county purposes, except where by specific statutory provisions such earnings are directed to be credited to and paid to a particular fund." (Ill. Rev. Stat. 1971, ch. 36, par. 22.1.) "The term `county moneys' shall include all monies to whomsoever belonging, received by or in possession or control of the incumbent of the office of county treasurer when acting as such or in any other official capacity incident to his incumbency of the office of county treasurer." (Ill. Rev. Stat. 1971, ch. 36, par. 17.) Relying on the literal meaning of these statutes, the trial court and the appellate court held that the money earned on the funds held by the county treasurer is to be deposited into the county corporate fund and not awarded to the condemnee. (67 Ill. App.3d 709.) This means that the condemnee may not appeal the amount of the award unless he is willing to sacrifice the income earned on the award while the appeal is pending. We do not agree with this interpretation of the aforementioned statutory scheme. Under the interpretation given to this statutory scheme by the appellate court, a government entity is entitled to condemn private property and then pay the awarded just compensation into the hands of another government entity for the benefit of the public while the private individual exercises his constitutional right to appeal what he may feel to be an unjust award. It is not just that the loss of income should be cast on the owner and the public be granted a windfall. The law by which the loss is occasioned is no act of the owner but an act of government that the owner has no power to repeal or modify so as to avoid the *362 loss. (Moll v. Sanitary District (1907), 228 Ill. 633, 637.) Here the owners were deprived of their property and deprived of the use of the award which stood in place of the property taken for 30 months while they exercised the constitutional right to appeal. During that time the award earned $92,357.08. We hold that to deprive the owners of these earnings would violate their constitutional rights as discussed below. Article I, section 15, of the 1970 Illinois Constitution and the fifth amendment of the United States Constitution prohibit the taking of private property for public use without just compensation. The Federal guarantee that private property shall not be taken for public use without just compensation is applicable to the States through the fourteenth amendment. (Chicago, Burlington & Quincy R.R. Co. v. City of Chicago (1897), 166 U.S. 226, 233-34, 41 L.Ed. 979, 983-84, 17 S.Ct. 581, 583-84.) The use of the award money by the county treasurer, to earn interest which is not paid to the owner but to the county, is clearly a taking of private property for public use. The word "property" as employed in the taking clause of the Federal and Illinois constitutions includes every interest anyone may have in any and everything which is the subject of ownership, together with the right to possess, use, enjoy and dispose of the same. (United States v. General Motors Corp. (1945), 323 U.S. 373, 377-78, 89 L.Ed. 311, 318, 65 S.Ct. 357, 359-60; Father Basil's Lodge, Inc. v. City of Chicago (1946), 393 Ill. 246, 256; Metropolitan Trust Co. v. Jones (1943), 384 Ill. 248, 251; City of Belleville v. St. Clair County Turnpike Co. (1908), 234 Ill. 428, 434; Bailey v. People (1901), 190 Ill. 28, 33; United States v. 19.86 Acres of Land (7th Cir.1944), 141 F.2d 344.) The award money qualifies as property subject to the "taking clause" of the Federal and Illinois constitutions. The county had the use of the award money for 30 months. The earnings on the funds deposited *363 are a mere incident of ownership of the fund itself. The "taking clause" provision applies to the earnings in the same manner, and with the same force, as it applies to the principal. It is contended that under section 6.1 of "An Act concerning County Treasurers in counties containing more than 150,000 inhabitants * * *" (Ill. Rev. State. 1973, ch. 36, par. 22.1) these earnings must be paid into the county treasury, for the benefit of the county corporate fund, to be used for county purposes. A statute should be interpreted so as to avoid a construction which would raise doubts as to its validity. As this court stated in Continental Illinois National Bank & Trust Co. v. Illinois State Toll Highway Com. (1969), 42 Ill.2d 385: "We will presume that the legislature intended to enact a valid law. It is our duty to construe acts of the legislature so as to affirm their constitutionality and validity, if it can reasonably be done, and further if their construction is doubtful, the doubt will be decided in favor of the validity of the law challenged. [Citation.] Similarly, `It is our duty to so interpret a statute as to promote its essential purposes and to avoid, if possible, a construction that would raise doubts as to its validity,'" Continental Illinois National Bank & Trust Co. v. Illinois State Toll Highway Com. (1969), 42 Ill.2d 385, 389-90. We have set out above the two sections of the statute which it is contended require the earnings on the award money, deposited with the county treasurer, to be paid into the county corporate fund. The statutory language which it is argued compels this conclusion is found in the definition of "county moneys" found in section 1 (Ill. Rev. Stat. 1973, ch. 36, par. 17), which it is stated "shall include all moneys to whomsoever belonging." (Emphasis added.) Monies belonging to numerous governmental bodies at various times come into the possession or control *364 of the county treasurer. In fact, most of the money coming into the possession or control of the county treasurer is money belonging to various governmental bodies. Since these monies do not constitute private property, the constitutional proscription against taking private property for public purposes would not prevent the earnings from these funds from being used for county purposes. To preserve the validity of section 6.1 (Ill. Rev. Stat. 1973, ch. 36, par. 22.1) we must construe "to whomsoever belonging," as contained in the definition of county monies in section 1, as referring to money other than that which constitutes private property. To interpret the statute as the treasurer contends would constitute a taking of private property for public use. It is contended that there is no statutory provision authorizing the payment of interest on eminent domain awards that have been deposited with the county treasurer. Relying on several decisions of this court, which have held that, absent statutory authority, interest is not payable upon refunds made by the county, the county treasurer of Cook County argues that no interest can be paid to the condemnees in this case. First, it must be noted that interest is not being sought in this case. The condemnees are not asking that the statutory rate of interest or any fixed rate of interest be paid by the county on the amount of the deposit. They are asking to be paid only the amount which the county earned on the money that had been deposited with the county treasurer pursuant to the order of the court. We note that no order was entered directing the county treasurer to invest the money deposited with him in interest-earning accounts. The full amount of this deposit had not been invested in interest-earning accounts for the full period of time the money was on deposit. The condemnees are seeking to recover only the amount earned by the county through the use of this deposit which belongs to them. People v. Meyerowitz (1975), 61 Ill.2d 200, Clarendon *365 Associates v. Korzen (1973), 56 Ill.2d 101, and Lakefront Realty Corp. v. Lorenz (1960), 19 Ill.2d 415, relied on by the county treasurer, are distinguishable. These are cases in which the county had a legitimate claim to money that had been paid by the claimants, who were not entitled to a refund of the same until an adjudication of their claims had been made and a refund order entered. This court, in those cases, held that interest was properly denied because there was no statutory provision for the payment of interest. In our case the money that was deposited with the county treasurer belonged to the condemnees and at no time did the county have a legitimate claim to it or any interest in it. We hold that defendants are entitled to be reimbursed for the full amount of money which has been earned on the sum deposited with the county treasurer pursuant to the order of the circuit court of Cook County. The judgment of the appellate court, and the judgment of the circuit court of Cook County denying the payment of income earned on the funds in question, are reversed, and the cause is remanded to the circuit court of Cook County for further proceedings. Except as to the defendants herein, the holding of this case shall be applied prospectively to deposits made with county treasurers pursuant to orders entered on and after February 1, 1980. Reversed and remanded.

162 A.2d 528 (1960) Joseph JACKOWITZ et ux. v. Arthur P. DESLAURIERS et ux. Eq. No. 2811. Supreme Court of Rhode Island. July 8, 1960. On Motion to Reargue July 26, 1960. Robert Brown, Providence, for complainants. Vincent J. Chisholm, Providence, for respondents. ROBERTS, Justice. This is a bill in equity wherein the complainants seek to restrain the respondents from entering upon a certain parcel of real estate the title to which the complainants aver to be in them and from maintaining a hedge and fence thereon. The respondents filed an answer in the nature of a cross bill wherein they prayed that certain affirmative relief be granted them with respect to the parcel of land in question. After a hearing in the superior court, the trial justice entered a decree wherein he declared in substance that title to the real estate was in the complainants; that the respondents had an easement to maintain a cesspool thereon; that they should proceed forthwith to remove the hedge and fence; and that they be enjoined from further entry upon the land other than would be consistent with their easement. From that decree the respondents have appealed to this court. *529 It appears from the record that in 1947 the Leroy Realty Corporation, hereinafter referred to as the corporation, acquired a tract of land in the Riverside section of the city, formerly the town, of East Providence. This tract was subsequently platted as the Leroy Heights Plat and developed for residential uses. It further appears that at that time and until 1952 Leroy Hanson, a housebuilder, was president of the corporation. It further appears that on February 18, 1948 the corporation conveyed a house and lot located on that plat to respondent Arthur P. Deslauriers, who shortly thereafter conveyed the property to himself and his wife. This lot was designated as lot 46 on said plat and is situated on the easterly side of Wingate Road. It is bounded on the south by lot 45, which is located at the northeast corner of Wingate Road and Sandra Court. Both lots are bounded on the east by lot 69, which is situated on the northerly side of Sandra Court. Lot 69 is the property of complainants, having been conveyed to them by the corporation on July 30, 1958. It is not disputed that the respondent husband, who is a civil engineer by profession, took up residence in the house on lot 46 early in 1948 and that in the spring of that year he was engaged by Hanson to make certain surveys on the plat concerning the location of the lot lines. In the course of such work said respondent ascertained that his house was located so close to the southerly line of lot 46 that he would be unable to build a garage and breezeway on the south side thereof. Neither is it disputed that thereafter, acting under the direction of Hanson, the respondent husband made a survey by which a long, narrow strip along the northerly line of lot 45 was incorporated into lot 46 and a similar strip along the westerly edge of lot 69 was incorporated into lot 45. These parcels, referred to in complainants' exhibit 3 and the transcript as parcel "A" and parcel "B," are not relevant to the issue here. However, it is the further contention of said respondent that at the same time and under Hanson's direction he ran a survey line from the northeast corner of parcel "A" in a northeasterly direction to a point on the plat at the southwest corner of lot 48. Such line enclosed an irregularly shaped portion of lot 69 which lay immediately to the east of his own lot 46 and is referred to in the exhibit and the record as parcel "C." In his testimony Hanson disputes his participation in this transaction. It is clear that for some time the respondent husband has treated parcel "C" as part of his own lot, extended his lawn into that parcel, and planted a hedge and erected a fence along the easterly line thereof. In his decision the trial justice found that parcel "C" was the property of complainants and on that ground granted the relief set out in the decree appealed from. The respondents, in pressing their appeal, contend that the trial justice erred, first, in finding that they had not acquired title to that parcel by adverse possession and, second, that there had been no acquiescence by complainants in the easterly line of parcel "C" as the boundary line between the properties sufficient to estop them from asserting that it is not the true boundary line. The respondents' claim that they have acquired title to parcel "C" by adverse possession is, of course, made in reliance upon the provisions of general laws 1956, § 34-7-1. That statute, in pertinent part, provides that when one claiming title to real estate "shall have been for the space of ten (10) years in the uninterrupted, quiet, peaceful and actual seisin and possession of any lands, tenements or hereditaments for and during the said time, claiming the same as his, her or their proper, sole and rightful estate in fee simple * * *" he will be held thereby to have acquired title to that land. The burden, therefore, is on the respondents to prove that they have for a period of ten years been in the uninterrupted, quiet, peaceful and actual seisin of the land in question. Parrillo v. Riccitelli, 84 R.I. 276, 279, 123 A.2d 248. *530 In this respect the respondent husband testified that when he took possession of the house on lot 46 in the spring of 1948 he began immediately to develop a lawn around it. He testified that to this end he had graded the lot and had spread topsoil and grass seed thereon, including in the area with which he so dealt that portion of lot 69 extending to the easterly line of parcel "C." He further testified that he had top-dressed, fertilized, mowed, and otherwise maintained the resultant lawn continuously from the spring of 1948 to the time of the hearing. According to his further testimony, he enclosed the disputed area, parcel "C," in the summer of 1950 by planting a hedge of flowering shrubs along the easterly line thereof. The trial justice in his decision refers to the above-noted testimony, stating in part: "The Court does not feel that his evidence of date of starting to plant this area into lawn is reliable, but that it is more credible that he seeded it after he made some kind of physical boundary." It is clear from this language that he either disregarded or rejected the respondent husband's testimony as to the time when he began to exercise dominion over the parcel of land in dispute and concluded that such acts of dominion as were involved in preparing and maintaining the lawn began after the hedge was planted in the summer of 1950. On that basis he concluded that respondents had not been in continuous possession of the parcel for the ten-year period required by the statute. The respondent husband contends that the testimony given by him as to the time when he began to exercise dominion over the parcel in dispute was undisputed and urges that, therefore, under our long-established rule we should disregard the inferences drawn therefrom by the trial justice and draw from the undisputed testimony a conclusion other than that of the trial justice. Pearson v. Bozyan, 86 R.I. 311, 322, 134 A.2d 387, 392. We do not perceive that this is a case for an application of our rule that we will not be bound by inferences drawn from undisputed testimony by a trial justice but will ourselves in appropriate circumstances draw such other inference therefrom as may be reasonable. We are not confronted here with an inference drawn by a trial justice from undisputed evidence but with his disregard or rejection of positive direct testimony as to the date upon which the respondent husband began to exercise dominion over the parcel of land in dispute. We have scrutinized the transcript closely and have found nothing therein in the way of other positive testimony that contradicts such testimony. It is the well-settled law in this state that a trier of facts must accept completely uncontradicted and unimpeached testimony as probative of the fact it was adduced to prove. In the case of Gorman v. Hand Brewing Co., 28 R.I. 180, 66 A. 209, this court accepted the proposition that the positive testimony of a witness that remained uncontradicted and unimpeached could not be disregarded by the trial justice but must control the decision. However, the court made it clear that such testimony did not bind a trier of the facts merely because it was not contradicted by direct testimony. Such testimony may be impeached by improbability or contradiction inherent within it. It may also be impeached, the court took care to note, by the witness himself and the manner in which he testified. Concerning this the court stated at page 183 of 28 R.I., at page 211 of 66 A.: "Among the advantages that the jury always has over the court which is asked to review its finding is the opportunity given to weigh witnesses as well as their testimony." Clearly, a justice of the superior court sitting as a fact trier may impeach testimony otherwise uncontradicted and unimpeached on the basis of the observations which he made of the witness and the manner in which he testified. This court has repeatedly recognized the rule concerning the binding effect of testimony that is uncontradicted and unimpeached. In Walsh-Kaiser Co. v. Della Morte, 76 R.I. 325, at page 330, 69 A.2d 689, *531 at page 691, reiterating the rule that such testimony may be impeached by inherent improbability, we stated at page 330: "But the rule is quite different where the positive testimony of a witness is uncontradicted and unimpeached by other positive testimony or by circumstantial evidence, either intrinsic or extrinsic. Material testimony on a controlling issue that meets so rigid a test rarely occurs, but when it exists, as it clearly does in the instant case, it cannot be disregarded and will control the decision of the trier of facts." The rule has been recognized in Somerset Realty Co. v. Shapiro, 51 R.I. 417, 255 A. 360, and Halliday v. Rhode Island Co., 42 R.I. 350, 107 A. 86. In the instant cause we have the positive direct testimony of the respondent husband that he began to exercise dominion over the land in dispute in the spring of 1948. His testimony to that effect was not contradicted by any other direct positive testimony, although one of the witnesses who testified for complainants clearly had knowledge concerning said respondent's activities on the land at that time. Neither can we say that the testimony was impeached by some inherent improbability or by reason of its being inconsistent with established physical facts. We consider as particularly significant the absence of any statement by the trial justice in his decision that he considered this testimony impeached by reason of some extrinsic fact observed in the witness or in the manner in which he testified. We will not imply from a mere rejection or disregard of such testimony that a trial justice found it to be impeached by his observation of the witness or the manner in which he testified. A trial justice who relies upon that ground for the impeachment of such testimony should advert in some manner, however briefly, to his reason therefor. It is our opinion that the testimony of the respondent husband that he began to exercise dominion over the parcel of land in question in the spring of 1948 was uncontradicted and unimpeached, and in that circumstance it was error for the trial justice to disregard or reject it. When such fact is accepted as proved and the pertinent rule of law is applied to the resulting fact situation, it becomes clear that the respondents have sustained the burden of establishing that they exercised dominion over the parcel of land in dispute for a period of time in excess of the statutory period, and that therefore, by operation of the statute, title thereto vested in them. Because of our conclusion, it is not necessary for us to consider the respondents' other reasons of appeal. The respondents' appeal is sustained, the decree appealed from is reversed, and the cause is remanded to the superior court with direction to enter a new decree denying and dismissing the bill of complaint. CONDON, C.J., dissents. On Motion to Reargue. PER CURIAM. After our decision in the above cause was filed, the complainants by permission of the court presented a motion for leave to reargue, setting out therein certain reasons on which they base their contention that justice requires a reargument of the cause. We have carefully considered those reasons and we are of the opinion that they are without merit. Motion denied.

[Cite as O'Brien v. Jirles-Clark, 2015-Ohio-3365.] IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT Ron O'Brien, Prosecuting Attorney, : Plaintiff-Appellee, : No. 15AP-34 v. : (C.P.C. No. 14CV-8313) Colin Jirles-Clark, : (ACCELERATED CALENDAR) Defendant-Appellant. : D E C I S I O N Rendered on August 20, 2015 Ron O'Brien, Prosecuting Attorney, and Scott J. Gaugler, for appellee. Colin Jirles-Clark, pro se. APPEAL from the Franklin County Court of Common Pleas SADLER, J. {¶ 1} Defendant-appellant, Colin Jirles-Clark, appeals from a judgment of the Franklin County Court of Common Pleas granting judgment by default in favor of plaintiff-appellee, Ron O'Brien, Franklin County Prosecutor. For the reasons that follow, we affirm. I. FACTS AND PROCEDURAL HISTORY {¶ 2} On August 11, 2014, appellee filed a complaint seeking a preliminary and permanent injunction requiring appellant to immediately vacate his residence at 4999 Kingshill Drive, Apt. 115, Columbus, Ohio, due to his non-compliance with the residency restrictions pertaining to sexually oriented offenders. R.C. 2950.034. In the complaint, appellee alleges the following: appellant has been convicted or pleaded guilty to No. 15AP-34 2 importuning in violation of R.C. 2907.07 and disseminating matter harmful to juveniles in violation of R.C. 2907.31; either of the offenses for which appellant was convicted or pleaded guilty is a non-exempt sexually oriented offense or a child-victim oriented offense; appellant now resides at 4999 Kingshill Drive, Apt. 115, Columbus, Ohio; and appellant's current address is within 1000 feet of Focus Learning of Northern Columbus. On August 13, 2014, the clerk attempted service of summons and complaint on appellant by certified mail at 4999 Kingshill Drive, Apt. 115, Columbus, Ohio. On September 3, 2014, certified mail service was returned "unclaimed." On October 15, 2014, appellee instructed the clerk to make service on appellant by ordinary mail at the same address. On October 16, 2014, the clerk entered the certificate of mailing on the record. {¶ 3} Appellant did not answer the complaint. On December 11, 2014, appellee filed a motion for default judgment pursuant to Civ.R. 55(A). Appellant did not respond to the motion. On December 18, 2014, the trial court granted the motion for default judgment and issued an order enjoining appellant "from maintaining a residence at 4999 Kingshill Drive, Apt. 115, * * * Columbus, Franklin County Ohio." On January 14, 2015, the Franklin County Sheriff personally served appellant with the court's judgment entry. {¶ 4} On January 16, 2015, appellant, pro se, filed a notice of appeal to this court from the judgment of the trial court.1 II. ASSIGNMENT OF ERROR {¶ 5} Appellant sets forth the following assignment of error: The Civil Division rule for motion of default judgment in case no. 14 CV 8313. The ruling was based on Rev. Code 2950.01(A). III. STANDARD OF REVIEW {¶ 6} An appellate court employs an abuse of discretion standard in reviewing a trial court's decision to grant a motion for default judgment. See, e.g., Miranda v. Saratoga Diagnostics, 8th Dist. No. 97591, 2012-Ohio-2633; Dye v. Smith, 189 Ohio App.3d 116, 2010-Ohio-3539 (4th Dist.), citing Ramsey v. Rutherford, 4th Dist. No. 1 On January 21, 2015, the trial court determined appellant's January 16, 2015 "[m]otion to appeal under civil rule 60B" to be moot stating that appellant's "appeal and motion relate to the same judgment and any action taken by this court would be inconsistent with the Appellate Court's jurisdiction." See Howard v. Catholic Social Serv. of Cuyahoga Cty., Inc., 70 Ohio St.3d 141 (1994). No. 15AP-34 3 09CA3094, 2009-Ohio-5146, ¶ 10. An abuse of discretion is more than an error of law or judgment but, rather, it is a finding that the court's attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). IV. LEGAL ANALYSIS {¶ 7} R.C. 2950.034 provides, in relevant part, as follows: (A) No person who has been convicted of, is convicted of, has pleaded guilty to, or pleads guilty to a sexually oriented offense or a child-victim oriented offense shall establish a residence or occupy residential premises within one thousand feet of any school premises or preschool or child day-care center premises. (B) If a person to whom division (A) of this section applies violates division (A)[,] * * * the prosecuting attorney * * * that has jurisdiction over the place at which the person establishes the residence * * * has a cause of action for injunctive relief against the person. {¶ 8} Civ.R. 55(A) provides, in relevant part, as follows: When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules, the party entitled to a judgment by default shall apply in writing or orally to the court therefore. {¶ 9} Appellant's assignment of error alleges that the trial court erred by granting a default judgment to appellee. We disagree. {¶ 10} Civ.R. 4.6(D) provides, in relevant part, as follows: If a United States certified * * * mail envelope attempting service within * * * the state is returned with an endorsement stating that the envelope was unclaimed, the clerk shall forthwith notify the attorney of record * * * and enter the fact and method of notification on the appearance docket. If the attorney, or serving party, after notification by the clerk, files with the clerk a written request for ordinary mail service, the clerk shall send by United States ordinary mail a copy of the summons and complaint or other document to be served to the defendant at the address set forth in the caption, or at the address set forth in written instructions furnished to the clerk. The mailing shall be evidenced by a certificate of mailing which shall be completed and filed by the clerk. Answer day shall be twenty-eight days after the date of mailing as No. 15AP-34 4 evidenced by the certificate of mailing. The clerk shall endorse this answer date upon the summons which is sent by ordinary mail. Service shall be deemed complete when the fact of mailing is entered of record, provided that the ordinary mail envelope is not returned by the postal authorities with an endorsement showing failure of delivery. If the ordinary mail envelope is returned undelivered, the clerk shall forthwith notify the attorney, or serving party. (Emphasis added.) {¶ 11} The record in this case establishes that appellee instructed the clerk to serve appellant by ordinary mail at the address listed on the complaint after certified mail service had been returned "unclaimed." Appellee obtained service on appellant by ordinary mail on October 16, 2014, when the clerk entered the fact of mailing in the record. Appellant subsequently failed to plead or otherwise defend as provided by the Ohio Rules of Civil Procedure. {¶ 12} Appellee filed a motion for default judgment on December 11, 2014. Although service of the motion on appellant was not required under Civ.R. 55(A) because appellant had not appeared in the action, we note that appellee served the motion on appellant by ordinary mail on that date of filing.2 On December 18, 2014, the trial court granted appellee's motion for default judgment and issued an order, pursuant to R.C. 2950.034, permanently enjoining appellant "from maintaining a residence at 4999 Kingshill Drive, Apt. 115, * * * Columbus, Franklin County Ohio." {¶ 13} Based on the undisputed facts in the record, we find that appellee was entitled to a judgment by default against appellant pursuant to Civ.R. 55(A) and R.C. 2950.034. Although appellant now claims that he had a meritorious defense to the alleged non-compliance with R.C. 2950.034, the only issue before this court is whether the trial court abused its discretion in granting default judgment. {¶ 14} For the foregoing reasons, we hold that the trial court did not abuse its discretion when it entered a default judgment in favor of appellee. Accordingly, appellant's sole assignment of error is overruled. 2The certificate of service indicates ordinary mail service on appellant at 4999 Kingshill Drive, Apt. 115, Columbus, Ohio. No. 15AP-34 5 V. CONCLUSION {¶ 15} Having overruled appellant's sole assignment of error, we affirm the judgment of the Franklin County Court of Common Pleas. Judgment affirmed. BROWN, P.J., and LUPER SCHUSTER, J., concur. _________________ 

USCA1 Opinion [NOT FOR PUBLICATION] UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 96-2124 UNITED STATES, Appellee, v. OMAR GREENE, Defendant, Appellant. ____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Joseph L. Tauro, U.S. District Judge] ___________________ ____________________ Before Torruella, Chief Judge, ___________ Stahl and Lynch, Circuit Judges. ______________ ____________________ Diana L. Maldonado on brief for appellant. __________________ Donald K. Stern, United States Attorney, and Christopher F. _________________ ______________ Bator, Assistant United States Attorney, on brief for appellee. _____ ____________________ October 14, 1997 ____________________ Per Curiam. Pursuant to Fed. R. Crim. P. 11(a)(2), ___________ appellant Omar Greene entered a conditional guilty plea to the charge of being a felon in possession of a firearm. See ___ 18 U.S.C. 922(g)(1). He now appeals the denial of his pre- plea motion to suppress. For the reasons discussed below, we affirm the order denying the motion to suppress and appellant's conviction. I. The following facts are undisputed. On the evening of July 10, 1994, Boston police officers Charles Byrne, Michael Linsky, and James Freeman, members of the Anti-Gang Violence Unit, were together in a police vehicle in Roxbury. At approximately 10:50 p.m., a taxicab sped by them and went down Blue Hill Avenue. The officers pursued the cab and activated their lights and siren once they had caught up to it. The cab pulled over near an intersection that was about 3/4 of a mile from the place the police had first seen it. Officers Linsky and Freeman then approached the driver's side of the cab while officer Byrne proceeded to its right rear passenger's side. Appellant was the sole passenger seated in the rear of the cab. Officer Byrne saw appellant turn and look at the approaching officers. When officer Byrne arrived at the open passenger's window, he heard appellant exclaim, "What did I do?" Appellant appeared nervous. Byrne responded, "Who said you -2- did anything?" and shined his flashlight in at appellant. Byrne then observed a large bulge in appellant's right pants pocket. Although he did not know appellant and indeed had not even heard of him before that day, officer Byrne thought that the bulge might be a gun and decided that it was necessary to check to preserve the officers' safety. Byrne opened the door of the cab, put his hand on the bulge, and felt what he thought was a firearm. He announced this to his colleagues and held appellant's arms while officer Freeman removed from appellant's pocket a fully loaded semi-automatic handgun with one round in the chamber and seven rounds in the clip.1 During the course of these events, appellant made no 1 movements, save perhaps for turning his head when officer Byrne initially shined his light on him. Appellant was arrested and charged with two state firearm offenses.2 2 Ultimately, the state charges were dismissed and appellant was charged with violating 18 U.S.C. 922(g). Relying on the transcript of officer Byrne's testimony at his pretrial detention hearing, appellant moved to suppress the gun and ammunition on the ground that the police ____________________ 1The gun bore an obliterated serial number and was later 1 found to be stolen. The record does not suggest that appellant was the thief. 2The cab driver was given a verbal warning and sent on his 2 way. -3- lacked reasonable suspicion to stop and search him.3 After 3 the government filed an opposition, the district court entered a one-sentence order that denied the appellant's motion without stating its reasons. Ten months later, the appellant entered a conditional guilty plea and was sentenced to 30-months' imprisonment and two years of supervised release. He now challenges the denial of his motion to suppress. II. Ordinarily, in reviewing the denial of a motion to suppress, we scan the district court's findings of fact for clear error, while affording plenary review to its conclusions of law, including determinations of probable cause and reasonable suspicion. See, e.g., Ornelas v. United ___ ____ _______ ______ States, 116 S. Ct. 1657, 1659-63 (1996); United States v. ______ _____________ Young, 105 F.3d 1, 5 (1st Cir. 1997). Our review here is _____ somewhat hampered because the district court's order denying appellant's motion to suppress gave no reasons. Nevertheless, an "order denying a motion to suppress is to be upheld if any reasonable view of the evidence supports it." United States v. Lamela, 942 F.2d 100, 102 (1st Cir. ______________ ______ 1991)(internal punctuation and citations omitted). As the ____________________ 3The motion to suppress also sought to exclude an 3 unspecified amount of marijuana which was found on appellant after he was arrested. Appellant has not been charged with a criminal offense based on this conduct. -4- essential facts are undisputed and the district court's legal conclusions are subject to de novo review, we may simply __ ____ decide whether the stop and search of appellant were valid. Cf. United States v. Sepulveda, 102 F.3d 1313, 1315 (1st Cir. ___ _____________ _________ 1996)(undertaking similar inquiry where underpinnings of denial of motion to suppress were somewhat unclear). A reviewing court evaluating the reasonableness of an investigative stop must perform a two-step inquiry. First, the court must determine whether the police action was justified at its inception. Second, the court must determine whether the action taken was reasonably related in scope to the circumstances which justified the intrusion. See, e.g., ___ ____ United States v. Young, 105 F.3d 1, 6 (1st Cir. 1997); United _____________ _____ ______ States v. Kimball, 25 F.3d 1, 6 (1st Cir. 1994). In ______ _______ assessing the reasonableness of a police officer's actions, a court "must consider the totality of the circumstances which confronted the officer at the time of the stop." United ______ States v. Kimball, 25 F.3d at 6. ______ _______ It is clear that the stop of the speeding cab was valid, and appellant does not seriously contend otherwise. See ___ United State v. Moorefield, 111 F.3d 10, 12 (3d Cir. _____________ __________ 1997)(traffic stop is lawful where police observe violation of traffic regulations).4 This case turns on whether the 4 ____________________ 4Although appellant concedes that he was physically 4 stopped as a result of the stop of the cab, he suggests that he was not legally stopped because he was only a passenger -5- ensuing pat-down search of appellant's person was justified. Appellant argues that the police were not justified in frisking him because they lacked a particularized reasonable suspicion directed at him. Since only the driver had committed the traffic violation and appellant was only, in his view, an "accidental guest" of the cab, appellant maintains that the police had no reason to suspect him of any crime. Appellant further asserts that where he made no movements, the fact that officer Byrne saw a bulge in appellant's pants did not give the officer a reasonable suspicion to conduct a frisk. In contrast, relying on Pennsylvania v. Mimms, 434 U.S. 106, 111-12 (1977), the ____________ _____ government asserts that a bulge in the clothing of a person travelling in a car that is lawfully stopped for a traffic violation provides sufficient grounds for the officer to believe that the person is armed and dangerous, thus justifying a pat-down search.5 5 ____________________ and was not a party to the driver's traffic violation. "When a police officer effects an investigatory stop of a vehicle, all occupants of that vehicle are subjected to a seizure as ___ defined by the Fourth Amendment." United States v. Kimball, ______________ _______ 25 F.3d at 5. See also United States v. Robeson, 6 F.3d ___ ____ _____________ _______ 1088, 1091 (5th Cir. 1993)("a stop results in the seizure of the passenger and the driver alike"). Thus, appellant was lawfully stopped even though he was only a passenger the cab. 5In Pennsylvania v. Mimms, 434 U.S. at 11 n. 6, the 5 ____________ _____ Supreme Court held that the police may order the driver to exit a vehicle lawfully stopped for a traffic violation -6- Under Terry v. Ohio, 392 U.S. 1, 27 (1968), whether the _____ ____ pat-down search of the appellant was justified depends on "whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of the others was in danger." Accord United States v. Villanueva, ______ _____________ __________ 15 F.3d 197, 199 (1st Cir. 1994). Although we think it a close question, we conclude that officer Byrne was warranted in his belief that the officers' safety was in danger and that he was further warranted in immediately performing a pat-down of appellant. To be sure, all the police knew was that: (1) appellant was a passenger in a speeding cab who (2) had glanced back at the officers as they approached, (3) appeared nervous, (4) asked, "What did I do?" and (5) had a bulge in the pocket of his pants. Appellant made no sudden or furtive movements, and was not known to officer Byrne before that day. Appellant contends that these observations do not support any ___ suspicion that he was engaged in criminal activity, let alone a crime where a gun might be present. We disagree. ____________________ without violating the Fourth Amendment. The Court recently extended this rule to passengers. See Maryland v. Wilson, ___ ________ ______ 117 S. Ct. 882, 886 (1997)("an officer making a traffic stop may order passengers to get out of the car pending completion of the stop"). While Mimms also upheld a pat-down frisk of _____ the driver based solely on the police officer's observation of a bulge, Wilson did not involve a pat-down search. ______ Because other circumstances were present in this case, we need not decide whether the observation of a bulge on a passenger of a vehicle stopped for a traffic violation will alone justify a pat-down of the passenger. -7- Appellant's nervousness and question could reasonably be construed by a seasoned police officer as evincing consciousness of guilt. The bulge, even if alone not enough to support a reasonable suspicion, was surely a factor to be considered with the others given the widespread presence of guns on the streets of Boston. See United States v. ___ ______________ Villanueva, 15 F.3d at 199 (recognizing the plethora of gun __________ carrying, particularly by the young). And while the officer might well have conducted a lesser intrusion (e.g., by first ordering the appellant to exit the cab, or by asking him whether he was carrying a gun), it was not unreasonable for him to simply proceed with a frisk where to have done otherwise under the circumstances may have given appellant an opportunity to use the gun. Cf. United States v. Young, 105 ___ _____________ _____ F.3d 1, 7 (1st Cir. 1997)(holding police officer reasonably lunged at gun of armed robbery suspect where lesser action may have created risk of harm).6 6 Other courts have upheld pat-down searches of passengers who exhibited similarly suspicious behavior. See, e.g., ___ ____ United States v. Moorefield, 111 F.3d at 13-14 (collecting ______________ __________ cases); United States v. Hassan El, 5 F.3d 726, 731 (4th Cir. _____________ _________ 1993)(upholding search in which officer grabbed at bulge through open car window and removed handgun); United States _____________ ____________________ 6The fact that the gun was found with a round of 6 ammunition chambered suggests that appellant was quite prepared to use the weapon. -8- v. Mitchell, 951 F.2d 1291, 1294-95 (D.C. Cir. ________ 1991)(upholding pat-down search of passenger who obeyed order to exit car). To be sure, in each of these cases the passengers appeared nervous and engaged in furtive movements which gave the police cause for suspicion. Appellant made no such movements here. Nevertheless, the foregoing cases remain instructive. The fact that appellant made no movements toward the gun did not eliminate the suspicion that he drew to himself with his question, particularly in view of the "inordinate risk of danger to law enforcement officers during traffic stops...." United States v. Baker, 78 F.3d ______________ _____ 125, 137 (4th Cir. 1996)(upholding protective search of driver who was subject of lawful traffic stop where driver exhibited bulge that could be made by weapon). Given appellant's nervousness, his assumption (evidenced by his question), that he was the object of the stop, and the bulge in his pocket, we think the frisk was justified. Accordingly, the order denying appellant's motion to suppress and the judgment of conviction are affirmed. ________ -9-

97 Wis.2d 679 (1980) 294 N.W.2d 547 STATE of Wisconsin, Plaintiff-Respondent, v. Charles K. LEE, Defendant-Appellant. No. 78-449-CR. Court of Appeals of Wisconsin. Argued January 24, 1980. Decided May 27, 1980. For the defendant-appellant, there was a brief and oral argument by William D. Whitnall of Racine. For the plaintiff-respondent, there was a brief submitted by Bronson C. La Follette, attorney general, and *680 David J. Becker, assistant attorney general. Oral argument by David J. Becker. Before Voss, P.J., Brown and Bode, J.J. BROWN, J. In this case, police had an arrest warrant for Oliver Scott Johnson but arrested Charles K. Lee by mistake, thinking him to be Johnson. Subsequent to Lee's arrest, a house search was conducted producing a suitcase full of marijuana. Lee was charged and convicted of possession of marijuana with intent to sell. He claims that his arrest is invalid because there were no reasonable, articulable grounds for police to believe he was the intended arrestee. We agree and reverse. Police were looking for Oliver Scott Johnson because he allegedly stole an automobile. Following the issuance of an arrest warrant, police received information that Johnson might be found at his sister's apartment. The only other information police knew about Johnson was that he was a young white man. Police went to the apartment of Johnson's sister and knocked on the door. A young white man came to the door wearing only a pair of pants. The police asked him if he was Oliver Scott Johnson, and he said he was not. Although there is some dispute as to what first name was given to the police, it is clear that he told police his last name was Lee. The police asked for identification, but Lee said that he had none on his person at the time. Lee did say that Ann Johnson, who was Oliver Johnson's sister, could verify that he was Lee and not Oliver Johnson. The police asked to use the telephone so that they could confirm Lee's story, but Lee told them the apartment had no telephone, and they would have to telephone elsewhere. One of the officers radioed a squad car to stop by Mrs. Johnson's place of employment and to determine if she knew who was in her apartment. The squad car then *681 contacted Ann Johnson and confirmed that the person in her apartment was Lee and not Oliver Scott Johnson. In the meantime, however, the police officers had decided to arrest Lee without first waiting for the confirmation from the squad car. Once Lee was put under arrest, the police officers told Lee that he would have to change clothes before coming with them to the police department. The police then followed Lee into the apartment in order to keep watch over him while he changed clothes. Near the kitchen, in plain view, one of the officers observed marijuana seeds and stems. He then ordered Lee to sit in a chair while a "sweep search" of the apartment was conducted. The sweep search produced a suitcase full of marijuana bags. Although the validity of the sweep search is also questioned on this appeal, we need not reach it. [1] Both the state and Lee urge us to adopt Sanders v. United States, 339 A.2d 373 (D.C. App. 1975). The Sanders case deals with situations where contraband is taken from an individual other than the one against whom the warrant is outstanding. Finding no previous Wisconsin cases dealing with the subject and believing that Sanders is good law, we adopt it. The teaching of Sanders is that evidence is properly admissible against the person mistakenly arrested as long as: (1) the arresting officer acts in good faith, and (2) has reasonable, articulable grounds to believe that the suspect is the intended arrestee. Sanders, supra, at 379. The Sanders court went on to explain: Should doubt as to the correct identity of the subject of warrant arise, the arresting officer obviously should make immediate reasonable efforts to confirm or deny the applicability of the warrant to the detained individual [sic]. If, after such reasonable efforts, the officer reasonably and in good faith believes that the suspect is the one against whom the warrant is outstanding, a protective *682 frisk pursuant to the arrest of that person is not in contravention of the Fourth Amendment. Cf. Patterson v. United States, D.C. App. 301 A.2d 67 (1973); United States v. McCray, 468 F.2d 446 (10th Cir. 1972). [Footnote omitted.] Sanders, supra, at 379.[1] The Sanders rationale is an outgrowth of Hill v. California, 401 U.S. 797 (1971), and its progeny. In Hill, two men who were arrested for the possession of narcotics were found also to have the fruits of a robbery. The two men named Hill as a fellow participant and said additional stolen property was in Hill's possession at his apartment. Officers proceeded to Hill's apartment to make a warrantless arrest and were met by a man named Miller who fit Hill's description. They arrested Miller, believing him to be Hill, and searched the apartment. They found the stolen property they were looking for. Miller was released two days later. Hill contended that the search was based on an invalid arrest of Miller and that the evidence seized should be inadmissible. The Supreme Court disagreed, finding: [n]o reason to disturb either the findings of the California courts that the police had probable cause to arrest Hill and that the arresting officers had a reasonable, good-faith belief that the arrestee Miller was in fact Hill, or the conclusion that "[w]hen the police have probable cause to arrest one party, and when they reasonably *683 mistake a second party for the first party, then the arrest of the second party is a valid arrest." [Citations omitted.] Hill, supra, at 802. The court in Hill paid particular attention to the similarity of descriptions between Hill and Miller. The court noted: At the preliminary hearing and trial, the only disparities in description established were that Miller was two inches taller and 10 pounds heavier than Hill. Hill, supra, at 803 n. 6. The court in Hill, therefore, found that the police had reasonable grounds to believe that Miller was in fact Hill. Therefore, the resultant search was justifiable. The Hill case, of course, was limited to the effect of Miller's arrest on Hill, the intended arrestee. The question was not what evidence would have been admissible against Miller, the person mistakenly arrested. The Sanders case addressed the issue not addressed in Hill. In Sanders, the police stopped a suspicious looking person on the street and inquired as to the person's identification. The person said that his name was "Sanders." The police then let him go but asked for information on Sanders anyway. Headquarters came back with a report that this Sanders was really a man named Saunders and that he was wanted in connection with a crime in Arlington County, Virginia. The police then hailed Sanders again and asked him if he had ever been in the Arlington County jail. Sanders replied that he had been, and he was subsequently arrested. A gun was found on his person, and he was arrested for possession of that firearm. The court found that the police had reasonable articulable grounds to believe that the suspect was the intended arrestee even though it later turned out that the Sanders who was arrested was different from the Saunders who had fled from Arlington County. The names *684 were nearly identical and the descriptions were identical. Sanders, supra, at 378 n. 4. Discussions relating to what constitutes reasonable grounds to believe that the suspect is the intended arrestee have been articulated in several cases besides Hill and Sanders. In United States ex rel. Kirby v. Sturges, 510 F.2d 397 (7th Cir. 1975), the arrest and ultimate search of the wrong man was upheld because the defendant looked just like a fugitive's picture which was carried in a police bulletin. The physical description also matched. This similarity justified officers in a stop and request for identification. The identification process, conducted in plain view of the officers, allowed the officers to observe stolen traveler's checks in the person's possession. The conviction was upheld. In United States v. Riggs, 347 F. Supp. 1098 (E.D.N.Y. 1972), police were instructed to watch for a "Cynthia Joyce Griggs," a known drug dealer, who was supposed to be on an incoming flight from Detroit to New York for the purpose of making a buy. Cynthia Joyce Griggs, a black woman, was traveling under the name of "P. Griggs" and was wearing a brilliant orange coat, large gold hoop earrings and carried no luggage. The police observed "P. Griggs" arrive in New York and leave the airport in a cab. Later in the day, a black woman, wearing a brilliant orange coat, large gold hoop earrings, carrying no luggage and otherwise answering the same description as "P. Griggs" prepared to depart on a one-way flight to Detroit under the name of "Miss F. Riggs." Michigan State Police then asked the New York officials to arrest "Miss F. Riggs" believing her to be the one and the same "P. Griggs." The officials arrested her, searched her and found narcotics. "Miss F. Riggs" was in reality Fairh Riggs and not Cynthia Griggs. The court found the police had reasonable grounds to believe the suspect was the intended arrestee. *685 In United States v. Rosario, 543 F.2d 6 (2nd Cir. 1976), on the other hand, the Court refused to uphold an arrest of a suspect mistakenly believed to be the intended arrestee since the description was so general that it "fit a very large group of ordinary young men." Rosario, supra, at 8. The Court said the officers did not obtain enough additional information prior to the arrest to have probable cause to arrest Rosario. Significant in the Court's ruling is that Rosario's first name, Angel, an unordinary name, was not considered sufficient reasonable cause for police officers to believe that the suspect was the intended arrestee even though the intended arrestee was named "Angel." [2] In this case, we find the police had no reasonable, articulable grounds to believe that the suspect was the intended arrestee. There was no description of Oliver Scott Johnson other than that he was a young white male. This description is so general that it fits a very large group of ordinary young men. We also find no significance in the fact that Oliver Scott Johnson was supposed to be residing at his sister's apartment, and instead Lee was there. We disagree with the state's assertion that because Oliver Scott Johnson was believed to be living at his sister's apartment, any young white man who answers the door clad in a pair of pants and providing no immediate proof of identification can be arrested without the necessity of obtaining more reliable information. If we were to hold for the state, we could see a particularly anomalous result arising. We envision any police officer, on the barest of information, being able to enter a person's home without consent on the strength of knowing only that a suspected offender of our criminal statutes is known to stop at the home from time to time. The police could arrest anyone fitting the most general description of the suspected offender and gain entry on the pretext *686 that the arrested person is not properly dressed. The police could then motivate the arrested person to go into the apartment to get dressed thus allowing a "sweep search." We cannot sanction that result. The officers in this case had doubt as to the correct identity of the subject. This is borne out by the police attempts to verify Lee's protestation that he was not the intended arrestee. Doubt as to the correct identity is also supported by one of the officer's remarks that when he found the suitcase full of marijuana, he told "Oliver Johnson or whoever he was that he was under arrest for possession of marijuana." The case shows a reasonable effort to gain more reliable information from Ann Johnson but no reasonable explanation why the police did not wait for that information before arresting Lee. There is no evidence of exigent circumstances justifying the arrest and subsequent entry prior to the gaining of the reliable information from the squad car. Lee was clad only in pants. One of the officers could easily have detained him at the door to prevent escape while the check on Lee's identity was being processed by the squad car. [3] We, therefore, find the seizure of Lee to be invalid and with that, the subsequent search is invalid. By the Court. — Judgment and orders reversed. NOTES [1] Sanders did not focus on the conduct of anyone other than the arresting officer. The Court did, however, entertain the following footnote which we feel worthy of reiteration: [T]he principles enunciated would seem to apply to other stages of the inquiry and arrest process, so that irrational, unjustified, or bad faith conduct by others involved in the procedure also could vitiate an arrest. As noted, for example, the "good faith of the officers on the scene cannot remedy the improper instruction to make a purposeless, warrantless arrest." United States v. Holmes, 452 F.2d at 261. See also Hill v. California, supra, 401 U.S. at 804, 91 S. Ct. 1106. Sanders v. United States, 339 A.2d 373, 379 n. 5 (D.C. App. 1975).

473 F.Supp. 791 (1979) SCM CORPORATION, Plaintiff, v. UNITED STATES (Brother International Corporation, Party-In-Interest), Defendant. C.R.D. 79-11; Court No. 77-4-00553. United States Customs Court. June 11, 1979. *792 *793 Frederick L. Ikenson, Washington, D. C., for plaintiff. Barbara Allen Babcock, Asst. Atty. Gen., Washington, D. C. (David M. Cohen, Washington, D. C., Branch Director, Federal Programs Branch, Sheila N. Ziff, New York City, trial atty.), for defendant. Tanaka, Walders & Ritger (H. William Tanaka, Lawrence R. Walders and Wesley K. Caine, Washington, D. C., of counsel), for party-in-interest. RE, Chief Judge: This is an American manufacturer's action brought by SCM Corporation [SCM], a domestic typewriter manufacturer, under the provisions of 19 U.S.C. § 1516(c). Plaintiff, SCM, seeks to review the failure of the Secretary of the Treasury to assess dumping duties on certain Japanese typewriters under the terms of the Antidumping Act of 1921, as amended. For dumping duties to be assessed, it is necessary that the Secretary of the Treasury determine that a class or kind of imported merchandise is being, or is likely to be, sold in the United States or elsewhere at less then fair value. In addition, the International Trade Commission must determine that an industry in this country is being, or is likely to be, injured, or is prevented from being established by reason of the importation of such merchandise at less than fair value. It is only when both of these determinations are made in the affirmative, i. e., less than fair value and injury, that dumping duties may be assessed. Thus, if the Secretary finds no sales at less than fair value, or if the International Trade Commission makes a negative injury determination, no dumping finding can be published and no dumping duties can be assessed. 19 U.S.C. § 160 et seq. ("Antidumping Act"). The history and underlying issues of this litigation are discussed in SCM Corporation v. United States (Brother International Corporation, Party-in-Interest), 450 F.Supp. 1178, 80 Cust.Ct. 226 (1978), in which this court decided that it had jurisdiction to *794 review the negative injury determination of the International Trade Commission. During the course of the litigation, plaintiff, by interrogatories, sought from the defendant, among other things, all documents and things in the files of the International Trade Commission and each Commissioner in investigation number AA1921-145. In response, defendant categorized and identified all of the documents and things that it claimed were in the files of the Commission or Commissioners at the time of the negative injury determination. Defendant did not produce the documents requested, and plaintiff sought an order compelling discovery. Defendant filed a cross-motion for a protective order, and moved to be relieved from responding to plaintiff's interrogatories and motion to produce. The court entered an order requiring that the Secretary of the International Trade Commission prepare and transmit to the Clerk of the United States Customs Court, the following: (1) A certified copy of the transcript of proceedings, and all exhibits introduced before the Commission in its investigation numbered AA1921-145; (2) Certified copies of all written submissions, questionnaires, reports and other documents which relate to investigation AA1921-145; (3) All other things in the files of the Commission relating to that investigation. The order further provided that the denial of defendant's cross-motion for a protective order was without prejudice, and was subject to renewal for the documents or things that were received by the Commission on a confidential basis, or that were otherwise privileged. SCM Corporation v. United States (Brother International Corporation, Party-in-Interest), 81 Cust.Ct. 159, C.R.D. 78-13 (1978). In compliance with that order, copies of all documents, confidential and nonconfidential, were transmitted to the court. Based upon a claim of executive privilege asserted by the Honorable Joseph O. Parker, Chairman of the International Trade Commission, the defendant now moves for a protective order as to nine (9) documents. A formal affidavit executed by Chairman Parker was submitted and attached to defendant's brief. When defendant, in response to plaintiff's discovery request, identified every document and thing in the files, it identified only one of the nine documents now claimed to be privileged, i. e., item No. 44, the "pros and cons" statement. Defendant contends that it has validly asserted privilege not only as to document No. 44, but also as to the other eight documents not previously identified. The nine disputed documents listed by the defendant are described as follows: No. 44 An undated four-page "pros and cons" statement prepared by staff for the use of the Commissioners in arriving at the Commission's determination with regard to Portable Electric Typewriters from Japan. This statement sets forth suggested criteria to be used as well as possible reasons for and against an affirmative injury determination. The document contains staff advice and alternative views and recommendations as to injury or likelihood of injury to the domestic industry; No. 56 Twelve-page, hand-written draft of Document 44; No. 58 An undated two-page draft opinion entitled "Statement of Reasons for Determination of Commissioner Minchew to Abstain" prepared by staff for the exclusive consideration of, and use by, Commissioner Minchew in arriving at his statement of reasons. The document contains advice, conclusions, deliberations, opinions, and recommendations; No. 59 An undated one-page draft opinion entitled "Statement of Reasons for Abstension (sic) of Vice Chairman Minchew" prepared by staff for the exclusive consideration of, and use by, Commissioner Minchew in arriving at his statement of reasons. *795 The document contains advice, conclusions, deliberations, opinions, and recommendations; No. 62 Four-page draft opinion, dated 6/16/75, entitled "Statement of Reasons for Negative Determination of Chairman Leonard, Commissioner Bedell," prepared by staff for the consideration of, and use by, the Commissioners in arriving at their statement of reasons. The document contains staff advice, conclusions, deliberations, opinions, and recommendations; No. 63 Three pages of hand-written notes used as a basis for the development of Document 44. Like Documents 44 and 56, this contains staff advice and alternative views and recommendations as to injury or likelihood of injury to the domestic industry; No. 68 An undated, four-page, second draft opinion entitled "Statement of Reasons for Negative Determination of Chairman Leonard and Commissioners Bedell and Parker" prepared by staff for the consideration of, and use by, the Commissioners in arriving at their statement of reasons, with hand-written modification made by, or at the direction, of individual Commissioners. The document contains staff advice, conclusions, deliberations, opinions, and recommendations, as well as tangible evidence of Commissioners' thought processes (in the case of hand-written modifications); No. 77 A five-page draft opinion, dated 6/17/75, entitled "Statement of Reasons for the Affirmative Determination of Commissioner Ablondi" prepared by staff for the exclusive consideration of, and use by, Commissioner Ablondi in arriving at his statement of reasons. The document contains advice, conclusions, deliberations, opinions and recommendations; No. 78 Five-page untitled draft opinion, dated 6/16/75, that supports an affirmative determination of injury in Portable Electric Typewriters from Japan. This document was prepared by staff for the exclusive consideration of, and use by, Commissioner Ablondi in arriving at his statement of reasons. This document contains advice, conclusions, deliberations, opinions, and recommendations. Plaintiff's opposition to the defendant's motion for a protective order is based upon its contention that the claim of executive privilege has been waived by defendant's conduct, and, that, in any event, it has not been properly invoked. Plaintiff also maintains that the privilege against interagency advisory opinions is not absolute but qualified. Plaintiff states that, in response to its discovery request, defendant identified only one of the nine documents now claimed to be privileged, item No. 44, the "pros and cons" statement. At that time, this document was not produced by the defendant on the ground that it was outside the scope of judicial review in these proceedings. Consequently, it is plaintiff's contention that, since the defendant based its refusal to produce item No. 44 solely upon the scope of judicial review, the defendant has waived its claim of privilege. The plaintiff also contends that, when asked to identify and produce, the defendant's response did not identify the eight additional documents produced after the court entered its order requiring production of all documents and things in the files of the Commission and Commissioners. Plaintiff argues that the defendant has offered no explanation for its failure to produce except that the eight documents were recently located. Also as to these documents, therefore, plaintiff contends that the defendant's conduct is tantamount to a waiver of its claim of executive privilege. Plaintiff submits an additional reason to deny the defendant's motion for a protective order. It asserts that the claim of executive privilege must be made by the "head" of the department or agency who must personally review the matter to determine *796 whether the privilege should be invoked, and that the Chairman of the International Trade Commission is not the appropriate official to invoke the privilege for that agency. Finally, plaintiff urges that the privilege which attaches to interagency advisory communications does not apply "to purely factual communications within or between agencies, the disclosure of which would not compromise military or state secrets . ."; further, that if no military or state secrets will be disclosed, even privileged materials should be disclosed "if the need for disclosure outweighs the harm that could result therefrom . . .." The defendant, in support of its claim of privilege, indicates that it is well-established that the government can assert an evidentiary privilege as to documents which contain intragovernmental advice, opinions and recommendations. The defendant also contends that the failure to pursue a timely valid claim of privilege should not be consider a waiver. Although the defendant states that it erred not to have specifically claimed privilege as to item No. 44, that fact should not prevent the court from granting its motion. If its claim of executive privilege is not sustained, as alternative relief, the defendant requests a certification by the court that the denial of its motion presents a controlling question of law which justifies an immediate appeal to the Court of Customs and Patent Appeals under 28 U.S.C. § 1541(b). The court must initially examine plaintiff's contention that the defendant has waived the privilege. In addition to denying any waiver, the defendant urges that the public interest in protecting government privileged materials far outweighs the deficiencies in asserting the claim. As to item No. 44, it is sufficient to note that the defendant initially refused to produce the document on the ground that it was outside the scope of discovery. A valid objection that has been asserted should not foreclose additional grounds for objection in subsequent proceedings. Since executive privilege exists to aid the governmental decisionmaking process, a waiver should not be lightly inferred. Surely, a waiver cannot be implied on the facts before the court. As for the eight documents not identified upon the discovery request, and now claimed to be privileged, the opportunity to raise the claim of executive privilege should be permitted if it is required by the public interest. In the motion to compel discovery, the defendant has invoked the claim of executive privilege as to all documents. The cases teach that this was a proper method for the invocation of the privilege. See Armstrong Bros. Tool Co. et al. v. United States (Great Neck Saw Manufacturing, Inc., Party-in-Interest), 463 F.Supp. 1316, 82 Cust.Ct. ___ (1979). On the question whether the claim has been properly invoked by Chairman Parker, the court notes that it has been held that the Chairman of the International Trade Commission holds a position of high authority, and is authorized to examine documents with the expertise to exercise a proper claim of privilege. Sprague Electric Company v. United States (Capar Components Corp., Party-in-Interest), 462 F.Supp. 966, 81 Cust.Ct. 168 (1978). Quoting from Smith v. Federal Trade Commission, 403 F.Supp. 1000, 1016 (D.Del.1975), which examined the role of the Chairman of the Federal Trade Commission, Judge Newman, in Sprague stated: ". . . Chairman Parker is . . . `someone in a position of high authority [who] could examine the materials involved from a vantage point involving both expertise and an overview-type perspective.' Plainly, then, the rationale adopted by the Court in Smith concerning the Chairman of the FTC is fully applicable here to the Chairman of the ITC. Within the doctrine of United States v. Reynolds, 345 U.S. 1, 7-8, 73 S.Ct. 528, 97 L.Ed. 727 (1953), the Chairman of the ITC is clearly the `head' of the Commission for purposes of asserting a claim of executive *797 privilege, and such claim was properly made by him in this case on behalf of the Commission. See also Kerr v. United States District Court, 511 F.2d 192, 198 (9th Cir. 1975) (by implication), aff'd, 426 U.S. 394, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976)." 462 F.Supp. at 969. In the action presently before the court, there has been full compliance with the established criteria: the privilege has been formally claimed; it has been asserted by the head of the agency having control over the matter, the Chairman of the International Trade Commission, who personally considered the matter; the materials have been reviewed; and an appropriate affidavit has been submitted in support of the claim of privilege. On the circumstances presented, plaintiff's contention that the claim has not been properly invoked is without merit. Although it is said that discovery rules apply to the United States "just as fully as they apply to any other person," one of the privileges against discovery, unique to the United States as a sovereign, is that of "executive privilege." See Wright & Miller, Federal Practice and Procedure: Civil § 2019 (1970). The doctrine of executive privilege permits the executive branch to withhold disclosure of intragovernmental documents which contain advisory opinions, recommendations and deliberations in the formulation of governmental policies and decisions. National Courier Association v. Board of Governors of the Federal Reserve System, 170 U.S.App.D.C. 301, 313-314, 516 F.2d 1229, 1241-42 (1975); Smith v. Federal Trade Commission, 403 F.Supp. 1000, 1014 et seq. (D.Del.1975); and Verrazzano Trading Corp. v. United States, 70 Cust.Ct. 347, 350, C.R.D. 73-9 (1973). The privilege exists to encourage uninhibited and frank internal discussion in the formulation of governmental policy and decisionmaking. In the words of Mr. Chief Justice Burger, the privilege is necessary because "[h]uman experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances . . . to the detriment of the decisionmaking process." United States v. Nixon, 418 U.S. 683, 705, 94 S.Ct. 3090, 3106, 41 L.Ed.2d 1039 (1974). See also NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975). Except in cases of military or state secrets, executive privilege is not absolute, and the courts must determine whether the facts justify sustaining the claim of privilege. See United States v. Reynolds, 345 U.S. 1, 11, 73 S.Ct. 528, 97 L.Ed. 727 (1953); Wright & Miller, Federal Practice and Procedure: Civil § 2019 (1970). For example, the courts have permitted the disclosure of purely factual communications which would not compromise military or state secrets. Environmental Protection Agency v. Mink, 410 U.S. 73, 87-88, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973). Indeed, in all cases the courts must weigh the need for the materials sought against the potential harm that would result from their disclosure. See United States v. Nixon, 418 U.S. 683, 711-12, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); Black v. Sheraton Corporation of America, 371 F.Supp. 97, 100 (D.D.C.1974); Smith v. Federal Trade Commission, 403 F.Supp. 1000, 1015, (D.C.Del.1975). In weighing the conflicting interests to determine whether the documents should be protected from disclosure, a specific need must be demonstrated for the materials sought. Upon this basis, the importance of the materials to the lawsuit is weighed against the governmental policy to protect the confidentiality of executive communications. United States v. Nixon, 418 U.S. 683, 705, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). For example, in Sun Oil Company v. United States, 514 F.2d 1020, 206 Ct.Cl. 742 (1975), the petitioner alleged that its application for an offshore oil platform had been denied by the United States for improper political reasons. The court ordered an in camera inspection of Presidential documents so that it might weigh the conflicting interests between plaintiff's need for the evidence and the government's requirement of secrecy. On the other hand, in the Sprague case, which dealt with a document similar to item *798 No. 44 in the present case, the court observed: "The draft opinions and `pros and cons' statements sought by plaintiff (documents `a' through `g' in exhibit A) comprise essentially intra-agency advisory opinions and recommendations by the Commission's staff, and were an integral part of the Commission's deliberative process. Thus, these opinions and statements fit squarely within the concept of executive privilege as enunciated in the above-cited cases. In the process of making injury determinations and other decisions within the scope of its authority, it is undoubtedly in the public interest that the Commission and its staff must necessarily feel free to explore various alternatives on a confidential basis. [Footnotes omitted.]" 462 F.Supp. at 973. While documents which contain only factual material may be discovered, it has been observed that: "Free discovery of opinions based on those facts might cause undue reticence by the investigating officer, and prevent fulfillment of the purposes of the investigation. . . ." Reliable Transfer Co. v. United States, 53 F.R.D. 24, 25 (E.D.N. Y.1971). Although the legal principle is clear, because of the difficulty in some cases in distinguishing between fact and opinion, its application is not always free from doubt. Environmental Protection Agency v. Mink, 410 U.S. 73, 86, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973). In this case, plaintiff has made no request for a severance of any facts from the deliberative or other contents of the documents in issue. The privilege accorded intragovernmental memoranda reflects the public policy that preliminary discussions and deliberations require confidentiality for a candid consideration of alternative courses of conduct. Grumman Aircraft Eng. Corp. v. Renegotiation Board, 157 U.S.App.D.C. 121, 129, 482 F.2d 710, 718 (1973). This aspect of the privilege is analogous to the fifth exemption in the Freedom of Information Act which exempts from disclosure "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5). Indeed, the public interest in fostering candid discussion among governmental personnel may be deemed to take precedence over a litigant's interest in discovering matter essential to presenting a case. See Kaiser Aluminum & Chemical Corp. v. United States, 157 F.Supp. 939, 947, 141 Ct.Cl. 38 (1958). In the present case, plaintiff has not demonstrated a clear and persuasive need for the documents in question. In weighing the opposing interests, between the need to produce the documents and the public policy which prevents their disclosure, no compelling reasons have been offered by the plaintiff which would justify producing the "pros and cons" statement as well as the other documents. Plaintiff has not demonstrated what it expects to learn from the disputed materials, nor has it offered sufficient reasons to warrant the production of documents which admittedly contain deliberative matter. Kaiser Aluminum & Chemical Corp. v. United States, 157 F.Supp. at 947-48. Plaintiff urges that an in camera inspection by the court of the Commission's staff's "pros and cons" statement and draft opinions "may help focus on those facts or documents in the record thought [by the Commission's staff] to be most significant." To follow the suggestion would violate the policy which protects probing the mental processes of public officials who must evaluate the frank expression of opinion of those who must advise and set forth the advantages and disadvantages of a proposed decision. Environmental Protection Agency v. Mink, 410 U.S. 73, 92, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973); Morgan v. United States, 304 U.S. 1, 18, 58 S.Ct. 773, 82 L.Ed. 1129 (1938). See also discussion in Schwartz, Administrative Law 385-92 (1976). The materials sought, as described in the sworn affidavit and descriptive summary, *799 contain recommendations of two opposite courses of action, viz., on the one hand, a recommendation for an affirmative injury determination, and, on the other, a recommendation for a negative injury determination. Clearly, these documents, containing opinions, deliberations, advice and recommendations, show an evaluation by those who must advise on the advantages and disadvantages of a proposed policy decision. On the question of an in camera inspection, the following statement from the decision of this court in Armstrong Bros. Tool Co. et al. v. United States (Great Neck Saw Manufacturing Inc., Party-in-Interest), 463 F.Supp. 1316, 82 Cust.Ct. ___ (1979) is pertinent: "In certain cases where courts have utilized the `in camera' procedure for determining claims of executive privilege, `it appeared, before the inspection was ordered, that the claimant was entitled to some amount of discovery', and it was necessary to separate the privileged and unprivileged materials. [Citations omitted.]" 463 F.Supp. 1320. Thus, where the circumstances demonstrate that factual materials are a part of advisory memoranda, and are severable, an in camera inspection may determine which materials should be disclosed. In this case, the Chairman of the International Trade Commission has submitted an affidavit, attached to a description of the materials, which specifically declares that the claimed documents consist of advisory opinions, conclusions, considerations, deliberations, advice and recommendations prepared by members of the Commission's staff. The accuracy and veracity of the contents of the materials presented are not questioned. From the description of the materials, and the Chairman's affidavit, it does not appear that an in camera inspection is warranted. Hence, the claim of privilege is sustained. In summary, the Chairman of the International Trade Commission, in claiming privilege and resisting disclosure, by his affidavit and the description of the materials, has demonstrated to the court that the documents in question are advisory, and contain no severable factual information. The documents in question, representing "pure deliberative processes of government," are protected against disclosure. Weir v. United States, 508 F.2d 894 (2d Cir. 1974). For the foregoing reasons, based upon all of the papers and proceedings had, it is hereby ORDERED, ADJUDGED AND DECREED that defendant's motion for a protective order is granted, and that a claim of privilege has been found to have been correctly made for the documents described in the attached exhibit A, and, it is further ORDERED, ADJUDGED AND DECREED that the Clerk of the Court shall seal the documents listed in the attached exhibit A and keep them sealed pending any further order by the court. In view of the foregoing, the defendant's request to file an immediate appeal pursuant to 28 U.S.C. § 1541(b) is moot. EXHIBIT A LIST OF DOCUMENTS INVOLVED IN INVESTIGATION AA1921-145 WITH REGARD TO PORTABLE ELECTRIC TYPEWRITERS FROM JAPAN AS TO WHICH PRIVILEGE IS INVOKED Document[*] Description 44 An undated four-page "pros and cons" statement prepared by staff for the use of the Commissioners in arriving at the Commission's determination with regard to Portable Electric Typewriters from *800 Document[*] Description Japan. This statement sets forth suggested criteria to be used as well as possible reasons for and against an affirmative injury determination. The document contains staff advice and alternative views and recommendations as to injury or likelihood of injury to the domestic industry. 56 Twelve-page, hand-written draft of Document 44. 58 An undated two-page draft opinion entitled "Statement of Reasons for Determination of Commissioner Minchew to Abstain" prepared by staff for the exclusive consideration of, and use by, Commissioner Minchew in arriving at his statement of reasons. The document contains advice, conclusions, deliberations, opinions, and recommendations. 59 An undated one-page draft opinion entitled "Statement of Reasons for Abstension (sic) of Vice Chairman Minchew" prepared by staff for the exclusive consideration of, and use by, Commissioner Minchew in arriving at his statement of reasons. The document contains advice, conclusions, deliberations, opinions, and recommendations. 62 Four-page draft opinion, dated 6/16/75, entitled "Statement of Reasons for Negative Determination of Chairman Leonard, Commissioner Bedell," prepared by staff for the consideration of, and use by, the Commissioners in arriving at their statement of reasons. The document contains staff advice, conclusions, deliberations, opinions, and recommendations. 63 Three pages of handwritten notes used as a basis for the development of Document 44. Like Documents 44 and 56, this contains staff advice and alternative views and recommendations as to injury or likelihood of injury to the domestic industry. 68 An undated, four-page, second draft opinion entitled "Statement of Reasons for Negative Determination of Chairman Leonard and Commissioners Bedell and Parker" prepared by staff for the consideration of, and use by, the Commissioners in arriving at their statement of reasons, with hand-written modification made by, or at the direction, of individual Commissioners. The document contains staff advice, conclusions, deliberations, opinions, and recommendations, as well as tangible evidence of Commissioners' thought processes (in the case of hand-written modifications). 77 A five-page draft opinion, dated 6/17/75, entitled "Statement of Reasons for the Affirmative Determination of Commissioner Ablondi" prepared by staff for the exclusive consideration of, and use by, Commissioner Ablondi in arriving at his statement of reasons. The document contains advice, conclusions, deliberations, opinions and recommendations. 78 Five-page untitled draft opinion, dated 6/16/75, that supports an affirmative determination of injury in Portable Electric Typewriters from Japan. This document was prepared by staff for the exclusive consideration of, and use by, Commissioner Ablondi in arriving at his statement of reasons. This document contains advice, conclusions, deliberations, opinions, and recommendations. NOTES [*] These numbers correspond to those in the "List of Documents and Things in the Files of the U.S. International Trade Commission which Relate to ITC Investigation No. AA1921-145 (Portable Electric Typewriters from Japan)."

Filed 5/23/18; Certified for Publication 6/14/18 (order attached) COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA VINCENT KROLIKOWSKI, D071119 Plaintiff and Appellant, v. (Super. Ct. No. 37-2015-00006255- CU-OE-CTL) SAN DIEGO CITY EMPLOYEES' RETIREMENT SYSTEM, Defendant and Respondent. CONNIE VAN PUTTEN, Plaintiff and Appellant, (Super. Ct. No. 37-2015-00021007- v. CU-OE-CTL) SAN DIEGO CITY EMPLOYEES' RETIREMENT SYSTEM, Defendant and Respondent. APPEAL from a judgment of the Superior Court of San Diego County, Joel M. Pressman, Judge. Affirmed.  Law Office of Michael A. Conger and Michael Conger for Plaintiffs and Appellants. Noonan Lance Boyer & Banach, David J. Noonan and Genevieve M. Ruch; The Law Office of Steven W. Sanchez and Steven W. Sanchez for Defendant and Respondent. Appellants Vincent Krolikowski and Connie Van Putten (collectively appellants) are former employees of the City of San Diego (the City) and members of the San Diego City Employees' Retirement System (SDCERS) who receive monthly pension payments from SDCERS, the administrator of the City's pension plan. Krolikowski and Van Putten separately filed lawsuits against SDCERS after SDCERS discovered an error in calculating their monthly pension benefits and took action to recoup the past overpayments. In their now-consolidated lawsuits, Krolikowski and Van Putten assert causes of action for conversion, breach of fiduciary duty, writ of mandate (Code Civ. Proc., § 1085) and declaratory relief, all of which challenge SDCERS's ability to implement a recoupment procedure to collect the overpayments from Krolikowski and Van Putten. After a bench trial, the trial court entered judgment in favor of SDCERS. Krolikowski and Van Putten contend that the trial court erred in (1) sustaining SDCERS's demurrer to the conversion and breach of fiduciary duty causes of action; and (2) finding in favor of SDCERS after conducting a bench trial on the remaining causes of action for writ of mandate and declaratory relief. As we will explain, we conclude that appellants' arguments are without merit, and we accordingly affirm the judgment. 2  I. FACTUAL AND PROCEDURAL BACKGROUND Van Putten worked for the City's police department from 1965 to 1988, having reached the rank of police lieutenant. Van Putten then worked for the Union City police department, and deferred her retirement from the City until she retired from the Union City police department in December 2000, at which time she began receiving monthly pension payments from SDCERS.1 1 Our Supreme Court has summarized the role of SDCERS in administering the City's pension system: "San Diego is a charter city. It maintains a pension plan for its employees, the San Diego City Employees' Retirement System (SDCERS). (San Diego City Charter, art. IX, § 141; San Diego Mun. Code, § 24.0101.) SDCERS is a defined benefit plan in which benefits are based upon salary, length of service, and age. (San Diego Mun. Code, §§ 24.0402-24.0405.) The plan is funded by contributions from both the City and its employees. (San Diego City Charter, art. IX, § 143; San Diego Mun. Code, § 24.0402.) . . . [¶] The pension fund is overseen by a 13-member board of administration (SDCERS Board or Board). (San Diego City Charter, art. IX, § 144.) Although established by the City, the Board is a separate entity. (Ibid.; Bianchi v. City of San Diego (1989) 214 Cal.App.3d 563, 571.) The SDCERS Board is a fiduciary charged with administering the City's pension fund in a fashion that preserves its long-term solvency; it must ensure that through actuarially sound contribution rates and prudent investment, principal is conserved, income is generated, and the fund is able to meet its ongoing disbursement obligations. (Cal. Const., art. XVI, § 17; San Diego City Charter, art. IX, § 144.) Consistent with that central mission, the SDCERS Board has a range of ancillary obligations, including but not limited to providing for actuarial services, determining member eligibility for and ensuring receipt of benefits, and minimizing employer contributions. (Cal. Const., art. XVI, § 17, subds. (b), (e); San Diego City Charter, art. IX, §§ 142, 144; San Diego Mun. Code, § 24.0901.) To carry out these duties, the Board is granted the power to make such rules and regulations as it deems necessary. (San Diego City Charter, art. IX, § 144; San Diego Mun. Code, §§ 24.0401, 24.0901; see generally Bianchi, at p. 571; Grimm v. City of San Diego (1979) 94 Cal.App.3d 33, 39-40.)" (Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1063-1064 (Lexin).) 3  Krolikowski worked for the City's police department from 1972 to 1990, having reached the rank of detective. Krolikowski then worked for the County of San Diego as an investigator for the District Attorney's office, and deferred his retirement from the City until he retired from the County of San Diego in 2006, at which time he began receiving monthly pension payments from SDCERS. As Krolikowski and Van Putten testified, before they retired they both consulted with SDCERS about the amount of the pension benefit they would receive from their employment with the City, and they used that information in deciding when to retire. In 2013, SDCERS performed an audit of the pension benefits that it was paying to Krolikowski and Van Putten, and it discovered that it made an error in calculating the monthly payments that Krolikowski and Van Putten had been receiving since they retired. With respect to both Van Putten and Krolikowski, SDCERS had used the wrong retirement factor, in that it did not use the retirement factor that corresponded with the date that Van Putten and Krolikowski left their employment with the City. As to Van Putten, SDCERS also discovered that it had used the wrong annuity factor. SDCERS determined that, without accrued interest, the overpayments were $18,739.88 for Krolikowski and $17,049.48 for Van Putten.2 If SDCERS had correctly calculated the pension benefits when Krolikowski and Van Putten retired, Van Putten 2 We note that when SDCERS first contacted Krolikowski and Van Putten about the errors, SDCERS presented them with higher figures for the amount of the overpayments. Those figures, however, were mistakenly based on erroneous assumptions about Krolikowski and Van Putten's participation in the social security program. SDCERS subsequently corrected those errors, which resulted in the overpayment figures we have set forth herein. 4 would have received approximately $295 per month less at the time she started to collect her pension in 2001, and Krolikowski would have received $191.74 less per month at the time he started to collect his pension in 2006. In 2013, after discovering the errors, SDCERS contacted Van Putten and Krolikowski to explain that they would be required to pay back the overpayments.3 SDCERS also explained that, going forward, Van Putten's and Krolikowski's monthly pension benefit would be reduced to reflect the correct calculation of benefits. SDCERS gave Van Putten and Krolikowski the option of making the repayment of the past overpayments by either (1) having a specific amount deducted from their monthly pension payments over time, while incurring interest on the unpaid balance; or (2) making a lump sum payment to SDCERS, which would stop the accrual of interest on the amount owed. SDCERS also explained to Van Putten and Krolikowski that they had the right to file an administrative appeal to dispute the fact that an overpayment occurred or the amount of the overpayment. Krolikowski and Van Putten both pursued unsuccessful administrative appeals of SDCERS's decision to recoup the overpayments from them. An administrative appeal of SDCERS's decision to recoup overpayments consists of several steps: (1) the filing of a written appeal with SDCERS's member services director; (2) a review by SDCERS's Chief Executive Officer (CEO); (3) an appearance before SDCERS's Business and 3 When interest on the overpayments was included, SDCERS sought recoupment of $19,109.06 from Van Putten, as of July 25, 2014. As to Krolikowski, when interest was included SDCERS sought recoupment of $24,785.20 as of January 2014. 5 Governance Committee at a regularly scheduled meeting; and (4) a final decision by SDCERS's Board based on a recommendation of the Business and Governance Committee.4 As the final step of the appeal process, SDCERS's Board of Administration denied Krolikowski's appeal on November 14, 2014, and denied Van Putten's appeal on May 8, 2015. After the appeal process was over, to stop the accrual of further interest Van Putten made a lump sum payment to SDCERS in May 2015, under protest, in the amount of $21,512.54. In March 2015, SDCERS began making monthly deductions from Krolikowski's monthly pension payment in the amount of $269.25 to recoup the overpayment. On February 24, 2015, Krolikowski filed a complaint against SDCERS challenging its recoupment of the overpayments of his pension benefits, and on June 22, 2015, he filed a first amended complaint. The first amended complaint contained causes of action for (1) declaratory relief; (2) writ of mandate (Code Civ. Proc., § 1085); (3) breach of fiduciary duty, based on both common law and "constitutional" grounds (Cal. Const. art. XVI, § 17); and (4) conversion. The writ of mandate and declaratory relief causes of action both presented the issue of whether "SDCERS is subject to, at 4 SDCERS's appeal policy states that the Business and Governance Committee "may recommend referral to a hearing before an Adjudicator if the Committee deems that appropriate." No such referral to an adjudicator for an evidentiary hearing occurred here, and neither of the parties requested that the Business and Governance Committee make such a referral. Indeed, as the issues presented are primarily legal, revolving around SDCERS's authority to recoup past overpayments, it is unclear what factual disputes could have been resolved by an adjudicator. 6 most, a three-year statute of limitations and therefore may not collect any arrears overpayments;" and whether "SDCERS is subject to California law exempting pensions from levy or attachment (e.g., Code Civ. Proc., §§ 695.040, 704.11, sub[d.] (b)) and therefore may not simply take money from Krolikowski's pension." The breach of fiduciary duty cause of action was based on SDCERS's alleged wrongful "refusal to follow California law regarding the statute of limitations and exempting pensions from levy or attachment." The conversion cause of action was based on the allegation that SDCERS "intentionally and substantially interfered with Krolikowski's property by taking possession of funds that should have been paid to Krolikowski, by preventing Krolikowski from having access to these funds, and by refusing to return these funds to Krolikowski after he demanded the return of these funds." On June 23, 2015, Van Putten filed a complaint against SDCERS that contained the same causes of action as Krolikowski's first amended complaint and asserted the same legal theories, using largely identical language.5 Both cases were assigned to the same trial court department. SDCERS filed a demurrer to each of the causes of action in Krolikowski's first amended complaint. The trial court overruled the demurrer to the declaratory relief and writ of mandate causes of action. However, it sustained the demurrer to the breach of 5 Krolikowski's and Van Putten's complaints also alleged, as a basis for their causes of action, that the amount of SDCERS's original pension benefit calculations at the time of their retirement was correct. Appellants did not pursue that theory at trial, and we do not address it here. We note also that appellants expressly do not challenge the right of SDCERS to pay them the corrected amount of pension payments going forward. Their appeal challenges only the recoupment of the past overpayments. 7 fiduciary duty and conversion causes of action. In explaining its ruling sustaining the demurrer to those causes of action, the trial court stated that "SDCERS had an obligation to comply with the law and correct errors in benefit payments. . . . The exercise of attempting to correct an error in benefit payments cannot subject defendant to tort liability." SDCERS also had demurred to the breach of fiduciary duty and conversion causes of action on the ground that SDCERS was protected by immunity for tort liability for its employees' discretionary acts. However, the trial court did not rule on that ground for the demurrer. Because of the similarity of the Krolikowski and Van Putten complaints, the parties stipulated that the trial court's ruling on the demurrer to Krolikowski's complaint "shall be applicable to" Van Putten's case, and the parties reserved all rights to appeal in Van Putten's case as if the trial court had made the demurrer ruling in that case as well. The trial court later granted a motion to consolidate the Krolikowski and Van Putten cases, and it then considered cross-motions for summary judgment that were filed in the consolidated actions. At issue in the summary judgment motions were the remaining causes of action for writ of mandate and declaratory relief, both of which raised the issue of (1) whether SDCERS was subject, at most, to a three-year statute of limitations to collect any overpayments; and (2) whether SDCERS's actions to recoup the overpayments were prohibited because they constituted an illegal levy or attachment. Krolikowski and Van Putten further argued in their summary judgment motions that SDCERS was barred by the doctrines of equitable estoppel and laches from recovering the overpayments. 8 SDCERS pointed out in opposition that the doctrines of equitable estoppel and laches were not pled in the operative complaints. However, in ruling on the summary judgment motions, the trial court concluded that Krolikowski and Van Putten would be permitted to pursue those issues as part of its declaratory relief and writ of mandate causes of action, and that "the pleadings can be amended to allege these doctrines."6 The trial court denied the cross-motions for summary judgment. In its summary judgment ruling, the trial court concluded that (1) the collection of an overpayment of pension benefits was not a levy or attachment; and (2) SDCERS's "administrative correction process . . . is not subject to the statute of limitations for civil court actions." However, the court concluded that there were triable issue of material fact as to whether the doctrines of equitable estoppel or laches applied to bar SDCERS from collecting the overpayments. The trial court held a bench trial on the remaining issues of whether the doctrines of equitable estoppel and laches applied in this case to support Krolikowski and Van Putten's contention that SDCERS may not demand recoupment of the pension benefit overpayments made to them. At the conclusion of trial, the trial court requested that the parties submit proposed statements of decision. The trial court adopted the proposed statement of decision submitted by SDCERS and issued it as the trial court's decision in 6 Krolikowski and Van Putten subsequently filed amended complaints alleging in the declaratory relief and writ of mandate causes of action that the doctrines of equitable estoppel and laches applied to prevent SDCERS from demanding repayment from them. 9 favor of SDCERS on the remaining causes of action for writ of mandate and declaratory relief. In the statement of decision, the trial court set forth its findings that appellants had not met their burden to establish that the doctrine of laches applied because they did not establish unreasonable delay and did not establish prejudice from any delay. Similarly, the trial court explained that the doctrine of equitable estoppel did not apply because Krolikowski and Van Putten did not establish that SDCERS was apprised of its mistake before 2013, and did not establish that they sustained an injury in reliance on SDCERS's conduct. The statement of decision also reasserted the rulings made in the context of the summary judgment motion that (1) SDCERS was not subject to the statute of limitations for civil court actions in implementing its administrative recoupment process; and (2) SDCERS's act of seeking recoupment for the overpayments was not subject to the exemption against levy or attachment on a pension. The trial court thereafter entered judgment in favor of SDCERS, and Krolikowski and Van Putten filed a notice of appeal. II. DISCUSSION A. The Trial Court Did Not Err in Sustaining the Demurrer to the Breach of Fiduciary Duty and Conversion Causes of Action We first consider Krolikowski and Van Putten's contention that the trial court erred in sustaining the demurrer to the two tort-based causes of action they alleged, namely breach of fiduciary duty and conversion. 1. Standard of Review 10  " 'On appeal from an order of dismissal after an order sustaining a demurrer, our standard of review is de novo, i.e., we exercise our independent judgment about whether the complaint states a cause of action as a matter of law.' " (Los Altos El Granada Investors v. City of Capitola (2006) 139 Cal.App.4th 629, 650.) In reviewing the complaint, "we must assume the truth of all facts properly pleaded by the plaintiffs, as well as those that are judicially noticeable." (Howard Jarvis Taxpayers Assn. v. City of La Habra (2001) 25 Cal.4th 809, 814.) We may affirm on any basis stated in the demurrer, regardless of the ground on which the trial court based its ruling. (Carman v. Alvord (1982) 31 Cal.3d 318, 324.) 2. The Tort-Based Causes of Action Are Barred by Government Claims Act Immunity As one ground for its demurrer to the causes of action for breach of fiduciary duty and conversion, SDCERS argued that the Government Claims Act (Gov. Code, § 815 et seq.) provided it with immunity for the acts underlying those causes of action. The trial court sustained the demurrer on different grounds and did not reach the immunity issue. However, SDCERS contends on appeal that we should affirm the trial court's order sustaining the demurrer to those causes of action by concluding that it is immune from tort liability under the Government Claims Act. As we will explain, we conclude that SDCERS's immunity argument has merit and serves as a sound basis for affirming the demurrer to the causes of action for breach of fiduciary duty and conversion. a. Legal Basis for Immunity Argument 11  Within the Government Claims Act, the statutory immunity applicable to SDCERS in this context is set forth in Government Code section 815.2, subdivision (b), which creates immunity for a public entity when its employees are immune from liability for the act or omission at issue. As set forth in that provision, "[e]xcept as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability." (Ibid.; see also Caldwell v. Montoya (1995) 10 Cal.4th 972, 980 (Caldwell) [explaining that under Gov. Code, § 815.2, subd. (b) "public entities are immune where their employees are immune, except as otherwise provided by statute"]; Masters v. San Bernardino County Employees Retirement Assn. (1995) 32 Cal.App.4th 30, 49 [to the extent that the public pension system board had discretionary immunity, the public entity itself was also immune].) As SDCERS points out, the breach of fiduciary duty and conversion causes of action are based on acts by the SDCERS Board members, who are employed by SDCERS, and thus to the extent the Board members are protected by immunity, SDCERS is as well. Here, the immunity provision that applies to the individual SDCERS Board members is set forth in Government Code section 820.2. Under that provision, "[e]xcept as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused." (Ibid.) Our Supreme Court's case law has provided guidance on the type of decisions that fall under the discretionary act immunity set forth in Government Code section 820.2. 12 Immunity under this provision "is reserved for those 'basic policy decisions [which have] . . . been [expressly] committed to coordinate branches of government,' and as to which judicial interference would thus be 'unseemly.' . . . Such 'areas of quasi-legislative policy-making . . . are sufficiently sensitive' . . . to call for judicial abstention from interference that 'might even in the first instance affect the coordinate body's decision- making process.' " (Caldwell, supra, 10 Cal.4th at p. 981, citations omitted.) In contrast, "there is no basis for immunizing lower-level, or 'ministerial,' decisions that merely implement a basic policy already formulated." (Ibid.) The application of discretionary act immunity "requires a showing that 'the specific conduct giving rise to the suit' involved an actual exercise of discretion, i.e., a '[conscious] balancing [of] risks and advantages . . . .' " (Caldwell, supra, 10 Cal.4th at p. 983, citation omitted.) However, there is no requirement that the public employee's exercise of discretion be based on "a strictly careful, thorough, formal, or correct evaluation" because "[s]uch a standard would swallow an immunity designed to protect against claims of carelessness, malice, bad judgment, or abuse of discretion in the formulation of policy." (Id. at pp. 983-984.) b. The Breach of Fiduciary Duty and Conversion Causes of Action Are Based on Discretionary Acts by the SDCERS Board Based on the legal standards set forth above, SDCERS has immunity under the Government Claims Act if the breach of fiduciary duty and conversion causes of action are based on an exercise of discretion by the SDCERS Board members. 13  Here, as pled in the operative complaints, the breach of fiduciary duty cause of action is based on the SDCERS Board's alleged "refusal to follow California law regarding the statute of limitations and exempting pensions from levy or attachment." The conversion cause of action is based on SDCERS's "refusing to return" the recouped overpayments after appellants "demanded the return of these funds." Both of those acts are based on the SDCERS Board's careful evaluation of the issues at the Board meetings at which it considered Krolikowski's and Van Putten's appeals, during which it explicitly decided that it would reject the statute of limitations and exemption arguments, and that it would instead take steps to recoup the overpayments from Krolikowski and Van Putten. Indeed, as shown by the transcript of the SDCERS Board meetings regarding Krolikowski's and Van Putten's administrative appeals, the Board was grappling with a policy-level decision in concluding that it would go forward and recoup the overpayments. It considered, among other things, whether the law required such an action, whether it would be fair to proceed in that manner, whether other options were available, and whether it should proceed with the recoupment in order to set up a litigation scenario in which the courts could give the final word on whether SDCERS was permitted to seek recoupment for overpayments. The decision was clearly discretionary and was not merely the carrying out of a ministerial duty. Therefore, SDCERS is immune to tort liability for the acts underlying the causes of action for breach of fiduciary duty and conversion under the legal standards governing the immunity created by the Government Claims Act. 14  c. The Tort-based Causes of Action Are Subject to Immunity Even Though They Are Based on Provisions in the State Constitution Krolikowski and Van Putten do not attempt to contest that, as we have discussed above, the acts of the SDCERS Board giving rise to the breach of fiduciary duty and conversion causes of action are the type of discretionary decisions that normally would give rise to immunity from tort-based causes of action under the Government Claims Act. Instead, the sole argument that appellants make to us on the immunity issue focuses on the fact that they have pled a cause of action for breach of fiduciary duty that is based on the constitutional fiduciary duties of the SDCERS Board, rather than on common law fiduciary duties. Specifically, appellants argue that the immunity in Government Code section 815.2, subdivision (b) does not bar the breach of fiduciary duty cause of action because it arises under provisions of the California Constitution that establish the fiduciary duties of public pension boards. They contend that Government Claims Act immunity applies only when a tort claim is based on statutory or common law authority, but not when it is based on a constitutional provision.7 As the basis for their claim that their breach of fiduciary duty causes of action arise under our state's Constitution, appellants rely on article XVI, section 17 of the California Constitution, which describes the fiduciary responsibilities of the members of a public pension board. In part, that section provides: 7 As a matter of logic, although not expressly acknowledged by appellants, their argument against SDCERS's immunity claim would appear to apply only to the breach of fiduciary cause of action, not the conversion cause of action, as that cause of action is not based on a constitutional duty. 15  "Notwithstanding any other provisions of law or this Constitution to the contrary, the retirement board of a public pension or retirement system shall have plenary authority and fiduciary responsibility for investment of moneys and administration of the system, subject to all of the following: "(a) The retirement board of a public pension or retirement system shall have the sole and exclusive fiduciary responsibility over the assets of the public pension or retirement system. The retirement board shall also have sole and exclusive responsibility to administer the system in a manner that will assure prompt delivery of benefits and related services to the participants and their beneficiaries. The assets of a public pension or retirement system are trust funds and shall be held for the exclusive purposes of providing benefits to participants in the pension or retirement system and their beneficiaries and defraying reasonable expenses of administering the system. "(b) The members of the retirement board of a public pension or retirement system shall discharge their duties with respect to the system solely in the interest of, and for the exclusive purposes of providing benefits to, participants and their beneficiaries, minimizing employer contributions thereto, and defraying reasonable expenses of administering the system. A retirement board's duty to its participants and their beneficiaries shall take precedence over any other duty. "(c) The members of the retirement board of a public pension or retirement system shall discharge their duties with respect to the system with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with these matters would use in the conduct of an enterprise of a like character and with like aims." (Cal. Const., art. XVI, § 17.)8 In short, this provision establishes that members of a public pension board, such as the SDCERS Board members, are fiduciaries; that they must exercise their fiduciary 8 The current version of article XVI, section 17 of the California Constitution was put in place as a result of Proposition 162 (The California Pension Protection Act of 1992) "to 'insulate the administration of retirement systems from oversight and control by legislative and executive authorities' . . . , and to protect retirement boards from ' " 'political meddling and intimidation.' " ' " (City of Oakland v. Oakland Police and Fire Retirement System (2014) 224 Cal.App.4th 210, 226, fn. 8 (City of Oakland), citation omitted.) 16 duties with the purpose, among others, of providing benefits to participants and their beneficiaries; and that the board members' duty to pension plan participants and beneficiaries takes precedence over any other duty. However, as relevant to the following discussion, the plain language of the provision says nothing about creating liability for money damages against public pension plan members in instances when such liability would otherwise be barred by statutory governmental immunity. Appellants rely on the doctrine of constitutional supremacy to argue that their breach of fiduciary cause of action is not subject to Government Claims Act immunity because it arises under the Constitution. Under that doctrine, "it is well established that '[a] statute cannot trump the Constitution.' " (City of San Diego v. Shapiro (2014) 228 Cal.App.4th 756, 788; see also In re Marriage of Steiner and Hosseini (2004) 117 Cal.App.4th 519, 527 ["The California Constitution trumps any conflicting provision of the Family Code."].) As stated in the case law upon which appellants rely, "It has long been acknowledged that our state Constitution is the highest expression of the will of the people acting in their sovereign capacity as to matters of state law. When the Constitution speaks plainly on a particular matter, it must be given effect as the paramount law of the state." (Playboy Enterprises, Inc. v. Superior Court (1984) 154 Cal.App.3d 14, 28.) The doctrine of constitutional supremacy does not apply here because appellants have not identified any conflict between the constitutional provisions and the Government Claims Act immunity provisions. As we have explained, the constitutional provisions we have cited above merely establish that public pension board members have 17 certain fiduciary duties to participants and beneficiaries, but those provisions do not address whether beneficiaries and participants have the right to recover monetary damages from pension board members who breach those duties. Therefore, no constitutional provision is trumped when Government Claims Act immunity is applied to bar liability for monetary damages based on the SDCERS Board members' alleged breach of fiduciary duty. There are instances—such as in suits for inverse condemnation—where the Constitution specifically provides for a monetary remedy against a public entity that trumps any Government Claims Act immunity that might otherwise apply. Indeed, the legislative committee comments to Government Code section 815, which sets forth the general rule of immunity for public entities, acknowledges that in some instances, such as inverse condemnation, constitutional provisions will trump Government Claims Act immunity.9 "This section abolishes all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the state or federal constitution, e.g., inverse condemnation. In the absence of a constitutional requirement, public entities may be held liable only if a statute (not including a charter provision, ordinance or regulation) is found declaring them to be liable." (Legis. Com. com.—Sen., 32 pt. 1 West's Ann. Gov. Code (2012 ed.) foll. § 815, p. 215, italics added.) Here, because the constitutional provisions at issue do not expressly create a monetary 9 Regarding inverse condemnation, the California Constitution provides in part: "Private property may be taken or damaged for a public use and only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner." (Cal. Const., art. I, § 19, subd. (a).) 18 remedy for breach of fiduciary duty against public pension board members, this is not a case where the Constitution requires liability and therefore trumps the Government Claims Act immunity provisions. Appellants cite two cases that relied on the legislative committee comment to Government Code section 815 in analyzing whether a constitutionally-based cause of action was barred. Based on the legislative committee comment, Young v. County of Marin (1987) 195 Cal.App.3d 863 (Young) stated that "it is clear that although Government Code section 815 provides that public entities are not liable for injuries '[e]xcept as otherwise provided by statute,' they are not immune from constitutionally created claims." (Id. at p. 869.) Young concluded that the plaintiff could therefore state a cause of action against a public entity for wrongful termination based on the reasonable exercise of her First Amendment rights, regardless of the immunity for public entities stated in Government Code section 815. (Young, at p. 871.) Similarly, Fenton v. Groveland Community Services Dist. (1982) 135 Cal.App.3d 797 (Fenton) cited the legislative committee comment in stating that "the Legislature has recognized that the state Constitution may provide a cause of action independent from any statute providing for liability." (Id. at p. 804.) Fenton concluded that Government Code section 815 did not bar a cause of action based on the state constitution's right-to-vote provision. (Fenton, at p. 805.) Fenton and Young are not dispositive of the issue presented here. Those cases concerned different constitutional provisions, and thus their conclusion as to whether those provisions, with the specific language at issue, required liability against a 19 public entity, does not resolve the issue of whether article XVI, section 17 of the California Constitution requires liability for any breach of fiduciary duty that it describes. As we have explained, article XVI, section 17 contains no suggestion that a cause of action for money damages is required to be available against public pension board members. Turning to the language of article XVI, section 17 of the California Constitution, appellants contend that provision expressly excepts breach of fiduciary duty claims from Government Claims Act immunity, because it includes the phrase "notwithstanding any other provisions of law or the Constitution to the contrary." We reject this argument because it takes the phrase out of context. The full phrase provides that "[n]otwithstanding any other provisions of law or this Constitution to the contrary, the retirement board of a public pension or retirement system shall have plenary authority and fiduciary responsibility for investment of moneys and administration of the system, subject to all of the following . . . ." (Cal. Const., art. XVI, § 17.) Nothing in this phrase communicates an intent to create a constitutional monetary damages claim against public pension board members or to abrogate Government Claims Act immunity. Instead, the phrase is directed at the scope of a public pension board's authority to invest and manage pension system funds. As further support for their argument that Government Claims Act immunity does not apply here, appellants briefly refer to a statement by our Supreme Court in Lexin, supra, 47 Cal.4th 1050. Lexin was an appeal in a criminal proceeding against several former members of the SDCERS Board, in which they were charged with violating state 20 conflict of interest statutes (Gov. Code, § 1090 et seq.). (Lexin, at p. 1062.) Lexin concluded that the criminal informations should be set aside as to most of the board members, but made a comment at the end of the opinion, in dicta, explaining that even though the board members could not be criminally prosecuted, other avenues existed to address the type of misconduct alleged. "In closing, we note that, the applicability of [Government Code] section 1090 aside, a wealth of other legal remedies exists to ensure municipalities and retirement boards do not abuse the public trust. Both groups are subject to actions for declaratory relief or mandamus challenging their decisions . . . , as the City and SDCERS Board were sued here. Retirement board trustees are fiduciaries (Cal. Const., art. XVI, § 17) and as such are subject to suit for breach of fiduciary duty when their decisions fall short of the standard the law demands. We express no opinion as to whether the Lexin defendants breached their fiduciary duties here, nor whether they might otherwise have been subject to civil liability for their actions." (Lexin, at p. 1102, citations omitted.) Lexin does not mention the issue of immunity, and there is no indication that our Supreme Court even considered the issue when stating that the SDCERS Board members were subject to suit. Indeed, in stating that it was expressing no opinion on "whether the Lexin defendants . . . might otherwise have been subject to civil liability for their actions" (ibid.), our Supreme Court strongly implied that it had not considered whether immunity might apply to the specific conduct at issue. Thus, Lexin does not advance appellants' argument that a constitutionally-based breach of fiduciary duty claim is not subject to Government Claims Act immunity. 21  Finally, we note that our decision is consistent with the only other published authority to consider the issue of whether Government Claims Act immunity applies to constitutionally-based breach of fiduciary claims against public pension plan members. In Nasrawi v. Buck Consultants LLC (2014) 231 Cal.App.4th 328, beneficiaries of a county employees' pension trust brought suit against the public pension association, alleging that the association breached its fiduciary duty to them by failing to file a lawsuit against actuaries whose negligence allegedly caused the pension trust to be underfunded. Nasrawi concluded that the breach of fiduciary duty claims were barred by Government Claims Act immunity (Gov. Code, §§ 815, 815.2, 820.2) because the association's board members exercised their discretion in deciding whether to file suit against the actuaries. (Nasrawi, at pp. 342-343.) As do Krolikowski and Van Putten here, the plaintiffs in Nasrawi argued that "because they allege a constitutionally based duty, [the court] should not consider the question of immunity," and contended that "the immunity question" was "answered by the mere fact that the Constitution is the source of the duties at issue." (Id. at p. 341.) Nasrawi rejected the argument, explaining that "[u]ndoubtedly, the board owes fiduciary duties under [California Constitution, article XVI,] section 17, but whether it is immune from alleged violations of those duties is a separate question." (Nasrawi, at p. 341.) Consistent with our conclusion here, Nasrawi explained that plaintiffs had not identified any authority that supported their contention that "public entity employees are liable for injuries caused by their discretionary acts or omissions that violate constitutionally imposed duties." (Id. at p. 342, italics added.) 22  In sum, we conclude that based on the Government Claims Act, SDCERS is immune from the tort-based causes of action for breach of fiduciary duty and conversion asserted by Krolikowski and Van Putten, despite the fact that the breach of fiduciary cause of action was based on duties set forth in the California Constitution. Accordingly, the trial court did not err in sustaining SDCERS's demurrer to those causes of action. B. No Legal Doctrine Identified by Krolikowski and Van Putten Prevents SDCERS From Requiring Recoupment of the Overpayments We next turn to the several legal issues that the trial court resolved in the course of rejecting Krolikowski's and Van Putten's causes of action for writ of mandate and declaratory relief, both of which sought an order establishing that SDCERS was not legally authorized to take unilateral action to recoup the overpayments of pension benefits that it made to Krolikowski and Van Putten. 1. The Statute of Limitations for Causes of Action Based on Mistake Does Not Bar SDCERS From Requiring Recoupment of the Pension Overpayments Appellants' first argument is that the three-year statute of limitations applicable to causes of action based on mistake in Code of Civil Procedure section 338, subdivision (d) applies to SDCERS's recoupment of the overpayments from them and thus bars 23 recoupment.10 According to appellants, even though SDCERS sought recoupment through its own administrative process rather than by filing a lawsuit, it should be barred from seeking recoupment by the statute of limitations as if the recoupment were sought through a lawsuit. The trial court rejected that contention, concluding that SDCERS's administrative process for seeking a recoupment was not controlled by the statute of limitations applicable to a lawsuit filed in court. As we will explain, we agree with the trial court's analysis. As a first step in their argument, appellants contend that SDCERS has no legal authority to recoup overpayments, in that the City has not expressly enacted a law stating that SDCERS may take action to seek recoupment. Appellants argue that in the absence of any express authority, SDCERS is required to file a lawsuit, and that accordingly, we should apply the statute of limitations here as if a lawsuit had been filed by SDCERS. In arguing that SDCERS was not authorized to seek recoupment through an administrative process rather than through a lawsuit, SDCERS relies on the statement in City of San Diego v. San Diego City Employees' Retirement System (2010) 186 10 Code of Civil Procedure section 338, subdivision (d) sets forth a three-year statute of limitations for "[a]n action for relief on the ground of fraud or mistake." That provision further states that "[t]he cause of action in that case is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake." (Code Civ. Proc., § 338, subd. (d).) It is not clear from appellants' pleadings or briefing what they are contending the impact of the statute of limitation would be in this case, if we were to determine that it applies. Specifically, it is not clear whether appellants are claiming that (1) the three-year statute of limitations period had already expired by the time SDCERS began the recoupment process, so that all recoupment is barred; or (2) that SDCERS may only reach back to recoup three years of overpayments from the time it discovered the error. As we will conclude, neither contention would have merit, as the statute of limitations does not apply. 24 Cal.App.4th 69, 78 (City of San Diego) that "while SDCERS had exclusive authority to administer plan assets, it did not have plenary authority to evade the law." Appellants contend that SDCERS is evading the law by seeking recoupment through an administrative process rather than by filing a lawsuit because no express enactment by the City gives SDCERS recoupment authority. Appellants point out that with respect to certain other pension systems, the Legislature has given the plan sponsors the express authority to obtain recoupment within a certain time frame,11 but the City did not do so in the portion of the San Diego Municipal Code governing the operations of SDCERS. We reject the argument. Nothing in the City's laws establishing the scope of SDCERS's authority to administer the City's pension system prevents SDCERS from seeking recoupment of overpayments through an administrative process. Moreover, SDCERS generally has discretion to administer benefits to its members in a manner that it determines is in the best interest of the pension system and its members. "[P]ublic employee retirement system boards operate under a constitutional grant of plenary authority which grants to them 'sole and exclusive fiduciary responsibility over the assets of the public pension or retirement system.' (Cal. Const., art. XVI, § 17, subd. (a) (article XVI, section 17(a)).) . . . Similarly, the City's charter gives the board 'exclusive control of the administration and investment of such fund or funds as may be established.' (City 11 As appellants point out, the statutes governing CalPERS, California State Teachers' Retirement System, and certain county pension systems, give those entities the right to collect overpayments, limited to a three-year timeframe from the date of payment. (Gov. Code, §§ 20160, 20164, subd. (b)(1)); Ed. Code, §§ 22008, subd. (b), 24617; Gov. Code, §§ 31539, subd. (c), 31540, subd (b)(1).) 25 Charter, art. IX, § 144.)" (City of San Diego, supra, 186 Cal.App.4th at pp. 78-79.) The City's municipal code states that SDCERS "may modify benefits for service . . . and is the sole judge of the conditions under which persons may receive benefits from the system." (San Diego Mun. Code, § 24.0901.) As important here, although the City gives SDCERS wide authority to administer the pension system, SDCERS may not afford benefits that exceed the amounts authorized by the City in the City's ordinances governing pension benefits. "The granting of retirement benefits is a legislative action within the exclusive jurisdiction of the City. (City Charter, art. IX, § 141.) . . . [¶] It is not within SDCERS's authority to expand pension benefits beyond those afforded by the authorizing legislation. This is because the granting of retirement benefits is a power resting exclusively with the City. The scope of the board's power as to benefits is limited to administering the benefits set by the City." (City of San Diego, supra, 186 Cal.App.4th at pp. 79-80.) Because SDCERS is not authorized to have made the overpayments by paying out an amount of benefits in excess of the amounts authorized by the City, its action in recouping those overpayments is consistent with the scope of its authority as granted by the City, rather than inconsistent as appellants contend. Accordingly, SDCERS did not exceed the scope of the authority conferred upon it by the City by seeking recoupment of the overpayment through an administrative process rather than by filing a lawsuit. Our decision is consistent with City of Oakland, supra, 224 Cal.App.4th 210, which considered the extent of a retirement system board's discretion in deciding whether 26 to recover overpayments it had made to its members.12 Focusing on the general grants of authority in the California constitution and the city's charter, City of Oakland concluded that "[s]ince the Charter does not contain any express provisions regarding the collection of improper payments from retirees, any such overpayments must be analyzed under these general grants of Board authority."13 (Id. at p. 244.) The court concluded that "[g]iven this statutory backdrop—where the Board's decisionmaking must prioritize the rights of retirees while making complex decisions impacting multiple variables—we believe that the Board has discretion to decide whether, how and to what extent any overpayments made to . . . retirees should be repayable." (Ibid; see also Foster v. Pension Board of City of Alameda (1937) 23 Cal.App.2d 550, 555 [rejecting a writ of mandate brought by pension member of a city pension system who was overpaid pension benefits, and holding that the pension board could dock the member's future payments recoup the overpayments].) Case law establishes that when, as here, recoupment is obtained through an administrative process, rather than through a lawsuit filed in court, the statute of limitations does not apply. (Little Co. of Mary Hosp. v. Belshe (1997) 53 Cal.App.4th 325, 329; Robert F. Kennedy Medical Center v. Department of Health Services (1998) 61 12 City of Oakland's discussion of the board's authority was set forth in the course of considering the argument that equitable estoppel did not bar recoupment of overpayments made to members in that recoupment would enlarge the statutory power of the board. (City of Oakland, supra, 224 Cal.App.4th at p. 243.) 13 Oakland's city charter contained similar general grants of authority to the retirement system as we have cited above with respect to the City and SDCERS. 27 Cal.App.4th 1357.) Both cases involved writs of mandate filed by hospitals challenging the California Department of Health Services's decision to recoup the overpayment of funds by the Medi-Cal program. Under Welfare and Institutions Code section 14177, the department may recoup such overpayments by offsetting future payments to the hospital rather than by filing a court action to recover the overpayments. (Robert F. Kennedy Medical Center, at p. 1361 [explaining offset procedure].) Both courts concluded that various three-year and four-year statutes of limitations set forth in the Code of Civil Procedure did not apply to bar the recoupment because " '[s]tatutes of limitations found in the Code of Civil Procedure . . . do not apply to administrative actions.' " (Ibid., quoting Little Co. of Mary Hosp..)14 Witkin summarizes the principle relied on in those cases, stating that "the general and special statutes of limitation referring to actions and special proceedings are applicable only to judicial proceedings; they do not apply to administrative proceedings." (3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 430, p. 547.) Here, because SDCERS did not file a lawsuit to recoup the overpayments, but 14 Appellants rely on the recent decisions in Yuba City Unified School District v. State Teachers' Retirement System (2017) 18 Cal.App.5th 648 and Baxter v. State Teachers' Retirement System (2017) 18 Cal.App.5th 340 (Baxter) to argue that "the statute of limitations applies to public pension systems, like SDCERS." We disagree, as Yuba City and Baxter are inapposite. Yuba City and Baxter both concerned challenges to the State Teacher's Retirement System's decision to recoup overpayments of pension benefits under Government Code section 22008, which permits such recoupment only for three years from "the discovery of the incorrect payment." (Ed. Code, § 22008, subd. (c).) Here, in contrast, no statutory authority applicable to SDCERS creates any time limitations on SDCERS's ability to recoup overpayments. As such, Baxter and Yuba City do not establish that a public pension system such as SDCERS is subject to any limitations period for recoupment in the absence of any specific statutory time limitation for recoupment. 28 instead pursued recoupment through its own internal administrative process, it is not subject to a statute of limitations period set forth in the Code of Civil Procedure.15 Appellants argue that case law discussing administrative processes of recoupment do not apply here because SDCERS did not provide an adequate administrative process to appellants, in that it "did not provide the appellants with a bona fide administrative hearing." According to appellants, the rules allowed their attorney to speak for only three minutes at the Business and Governance Committee and at the SDCERS Board hearings, and no hearing before an adjudicator was made available to them. In short, they contend that because they were not afforded "the type of administrative hearing contemplated 15 Appellants rely on County of Marin Assn. of Firefighters v. Marin County Employees Retirement Assn. (1994) 30 Cal.App.4th 1638 to argue that the statute of limitations applies to an administrative process to recoup overpayments of pension benefits. However, that case arose in a different posture than this action, and not in the context of an administrative process to recoup overpayments, and thus is not persuasive. In County of Marin an employee association successfully filed a lawsuit to obtain a higher benefit payment retroactively by requiring the retirement association to include holiday pay in the pension benefit calculation. As part of the litigation, the retirement association contended that because it was required to retroactively pay higher pension benefits, it was entitled to recover contributions from the member in arrears to fund the higher benefits. County of Marin concluded that in the context of the lawsuit, the retirement association was barred by the statute of limitations from collecting contributions in arrears. The arrears issue was first raised by the retirement association in the context of litigation, and thus County of Marin did not address the issue presented here, namely whether an administrative process to recover overpayments is controlled by the statute of limitations. (See City of Oakland v. Public Employees' Retirement System (2002) 95 Cal.App.4th 29, 49 [explaining that County of Marin should not be misapplied to support the application of the statute of limitations to an administrative reclassification proceeding because "County of Marin was discussing a claim made in a civil action"].) Because County of Marin did not consider or discuss whether it was proper to apply the statute of limitations to an administrative recoupment process as opposed to a civil litigation proceeding, we find it to be inapposite to the issue presented here. 29 under [Code of Civil Procedure section] 1094.5," SDCERS "did not have an administrative process such that the 'administrative process exception' to the statute of limitations would apply." We reject the argument. Appellants have identified no case law stating that a certain type of administrative process must be provided to avoid the application of the statute of limitations set forth in the Code of Civil Procedure. The proper focus in not on the nature of the administrative process, but rather on the fact that SDCERS's recoupment decision was made through an internal agency procedure that did not involve SDCERS filing a recoupment lawsuit in court.16 In the absence of any lawsuit, the statute of limitations set forth in Code of Civil Procedure section 338, subdivision (d) does not apply. Further, even if the statute of limitations set forth in Code of Civil Procedure section 338, subdivision (d) applied here, the undisputed facts presented at trial and in connection with the summary judgment motions show that SDCERS took action against Krolikowski and Van Putten to recover the overpayments within the time period allowed by the statute of limitations. Code of Civil Procedure section 338, subdivision (d) states that a cause of action "for relief on the ground of fraud or mistake" is "not deemed to have accrued until the discovery, by the aggrieved party . . . of the facts constituting the fraud or mistake." 16 We note that, as we have explained, SDCERS has an express written procedure for evaluating appeals of benefit determinations, and SDCERS followed its established process in both Krolikowski's and Van Putten's cases. SDCERS's procedures give it the discretion to refer the dispute to an adjudicator, but it did not elect to do so here, and neither Krolikowski nor Van Putten requested that SDCERS exercise its discretion to make a referral to an adjudicator. 30 (Code Civ. Proc., § 338, subd. (d).) "Although the statute does not expressly provide that the claim will accrue based upon either actual or inquiry notice of the claimant, California courts have long construed it in such a fashion." (Baxter, supra, 18 Cal.App.5th at p. 359.) As our Supreme Court has long held, under Code of Civil Procedure section 338, subdivision (d), a "plaintiff must affirmatively excuse his [or her] failure to discover the fraud within three years after it took place, by establishing facts showing that he [or she] was not negligent in failing to make the discovery sooner and that he [or she] had no actual or presumptive knowledge of facts sufficient to put him [or her] on inquiry." (Hobart v. Hobart Estate Co. (1945) 26 Cal.2d 412, 437 (Hobart).) When inquiry notice applies, "if [a party] became aware of facts which would make a reasonably prudent person suspicious, [the party] had a duty to investigate further, and [is] charged with knowledge of matters which would have been revealed by such an investigation." (Miller v. Bechtel Corp. (1983) 33 Cal.3d 868, 875.) Here, no evidence in the record supports a finding that SDCERS became aware of facts that should have reasonably made it suspicious that appellants' pension benefits had been incorrectly calculated prior to the date that it conducted an audit and discovered the error. The undisputed evidence further shows that SDCERS took action within months of discovering the errors by notifying appellants that it would require recoupment. Therefore, SDCERS instituted the administrative process to recoup the overpayments to 31 appellants long before the expiration of the three-year statute of limitations in Code of Civil Procedure section 338, subdivision (d).17 Appellants contend that the statute of limitations should start running from the date that SDCERS made the mistaken calculations of the pension benefits because SDCERS always had available the information with which it could correctly determine the pension benefits, and SDCERS was therefore negligent in not discovering the errors more promptly. We reject this argument because it is based on a flawed understanding of the law governing delayed discovery of a cause of action for mistake or fraud under Code of Civil Procedure section 338, subdivision (d). As our Supreme Court has explained, "In many cases it has been said that means of knowledge are equivalent to knowledge. [Citations.] This is true, however, only where there is a duty to inquire, as where plaintiff is aware of facts which would make a reasonably prudent person suspicious. . . . [¶] It follows that plaintiff is not barred because the means of discovery were available at an earlier date provided he has shown that he was not put on inquiry by any circumstances known to him or his agents at any time prior to the commencement of the three-year period." (Hobart, supra, 26 Cal.2d at pp. 438-439.) " 'Where no duty is imposed by law upon a person to make inquiry, and where under the circumstances "a prudent man" 17 Appellants contend that the trial court's statement of decision improperly placed the burden on them to prove that SDCERS should have discovered its error sooner rather than placing the burden on SDCERS to show that it was not on inquiry notice more than three years prior to discovering the mistake. We reject appellants' argument because the portion of the statement of decision to which they refer concerns the trial court's analysis of the laches issue. "The party asserting laches bears the burden of production and proof on each element of the defense." (Highland Springs Conference and Training Center v. City of Banning (2016) 244 Cal.App.4th 267, 282.) 32 would not be put upon inquiry, the mere fact that means of knowledge are open to a plaintiff, and he has not availed himself of them, does not debar him from relief when thereafter he shall make actual discovery. The circumstances must be such that the inquiry becomes a duty, and the failure to make it a negligent omission.' " (Id. at p. 438.) Thus, without some evidence that SDCERS was aware of facts that should have made it suspicious that appellants' pension benefits were erroneously calculated, the mere fact that SDCERS had all of the information available to conduct a correct calculation does not cause the limitations period to begin to accrue. 2. The Exemption from Levy and Attachment for Benefits Under Public Retirement System Does Not Bar SDCERS from Recouping the Overpayments Under Code of Civil Procedure section 704.110, subdivision (b), with certain exceptions that are not relevant here, "[a]ll amounts held, controlled, or in process of distribution by a public entity derived from contributions by the public entity or by an officer or employee of the public entity for public retirement benefit purposes, and all rights and benefits accrued or accruing to any person under a public retirement system, are exempt" from all procedures for enforcement of a money judgment. Further, Code of Civil Procedure section 695.040 provides that "[p]roperty that is not subject to enforcement of a money judgment may not be levied upon or in any other manner applied to the satisfaction of a money judgment." Similarly, property exempt from enforcement of a money judgment is also exempt from prejudgment attachment. (Code Civ. Proc., § 487.020.) Based on these provisions, a pension benefit from a public entity such as 33 SDCERS may not be levied upon or made subject to attachment to satisfy a money judgment. According to appellants, the provisions creating an exemption from levy and attachment for their pension benefits also prevents SDCERS from recouping its overpayment of pension benefits because the recoupment process is equivalent to a levy or attachment. The trial court rejected this theory in ruling on the summary judgment motions, explaining that "recouping the overpayment is not a levy or attachment as SDCERS is not executing on or enforcing a money judgment." We agree with the trial court's reasoning. Appellants cite no authority that would support their position that the exemption against levy and attachment applies here. SDCERS does not have a money judgment against Krolikowski or Van Putten regarding the overpayment of pension benefits. Accordingly, in taking action to recoup those overpayments, SDCERS is not levying upon or attaching any funds to satisfy a money judgment, and SDCERS is therefore not barred from recoupment by the provisions in the Code of Civil Procedure preventing levy and attachment of benefits accrued under a public retirement system. (Cf. Atchley v. City of Fresno (1984) 151 Cal.App.3d 635, 646-647 [in deducting amounts from the plaintiffs' pension benefits based on their outside income, the city was not undertaking an "execution" on their pension benefits, as a writ of execution is the process of "authorizing the seizure and appropriation of the property of a defendant for the satisfaction of a money judgment against him"].) In the absence of any authority supporting their position, appellants make a policy argument. They contend that we would be ignoring "the policies embodied in the[] 34 Legislative enactments" prohibiting levy and attachment of public pension benefits if we were to allow SDCERS to recoup the overpayments. According to appellants, "SDCERS should have no greater rights than any other creditor." We are not persuaded. While the Legislature undoubtedly had sound policy reasons for exempting public pension benefits from levy and attachment by a judgment creditor, so as to "allow[ ] the debtor to retain all or part of it to protect himself and his family" despite a money judgment (Kilker v. Stillman (2015) 233 Cal.App.4th 320, 329), that is not the situation presented here. In this case it is the public retirement system itself, rather than a judgment creditor, that is seeking to recoup the overpayment of funds relating to appellants' pension benefits. Those overpayments are amounts that appellants should have not been paid as pension benefits in the first place. In short, the policies behind the exemption do not apply here because SDCERS is not a judgment creditor; it is the entity with the authority to ensure that appellants have been paid the correct amount of pension benefits and to take action to make corrections. 3. The Trial Court Properly Concluded That the Doctrine of Equitable Estoppel Does Not Apply Here In its statement of decision, the trial court found that appellants did not meet their burden to establish that SDCERS was equitably estopped to recoup the overpayments. Appellants challenge the trial court's decision. "The doctrine of equitable estoppel is founded on notions of equity and fair dealing and provides that a person may not deny the existence of a state of facts if that person has intentionally led others to believe a particular circumstance to be true and to 35 rely upon such belief to their detriment. . . . ' "Generally speaking, four elements must be present in order to apply the doctrine of equitable estoppel: (1) the party to be estopped must be apprised of the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury." ' . . . Where, as here, a party seeks to invoke the doctrine of equitable estoppel against a governmental entity, an additional element applies. That is, the government may not be bound by an equitable estoppel in the same manner as a private party unless, 'in the considered view of a court of equity, the injustice which would result from a failure to uphold an estoppel is of sufficient dimension to justify any effect upon public interest or policy which would result from the raising of an estoppel.' " (City of Oakland, supra, 224 Cal.App.4th at pp. 239-240, citations omitted.) Further, the doctrine of equitable estoppel has been applied in cases involving a retirement system's right to recoup the overpayment of pension benefits. (See, e.g., id. at pp. 239-248.)18 Here, appellants contend that the doctrine of equitable estoppel prevents SDCERS from denying that appellants were entitled to the full amount of the pension benefits that were paid to them. The trial court found against appellants based on their failure to establish two of the four required elements of equitable estoppel. Specifically, the trial 18 Based on the specific facts before it, City of Oakland concluded that the retirement system was estopped from recouping one type of overpayment (based on shift differential pay treatment) but not estopped from recouping another type of overpayment (based on a temporary reduction in the number of designated holidays). (City of Oakland, supra, 224 Cal.App.4th at pp. 239-248.) 36 court explained that based on the evidence presented at trial, appellants did not meet their burden to establish (1) that SDCERS was "apprised of the facts" prior to 2013 when it conducted the audits of appellants pension benefits; and (2) that appellants sustained an injury in reliance on SDCERS's failure to earlier inform them of the error in the calculation of their pension payments. "The existence of an estoppel is generally a factual question. [Citation] Therefore, we review the trial court's ruling in the light most favorable to the judgment and determine whether it is supported by substantial evidence." (Feduniak v. California Coastal Com. (2007) 148 Cal.App.4th 1346, 1360.)19 We first consider whether substantial evidence supports the trial court's finding that appellants did not establish the first element of equitable estoppel, namely that SDCERS was "apprised of the fact[]" that it had been paying appellants more pension benefits than they were entitled to receive. (City of Oakland, supra, 224 Cal.App.4th at p. 239.) For the purposes of the first element of equitable estoppel, the party to be estopped need not have actual knowledge of the true facts. Instead, it may be shown that the party 19 "[W]here estoppel is sought against the government, 'the weighing of policy concerns' is, in part, a question of law. . . 'Whether the injustice [that] would result from a failure to uphold an estoppel is of sufficient dimension to justify the effect of the estoppel on the public interest must be decided by considering the matter from the point of view of a court of equity' " (Feduniak v. California Coastal Com., supra, 148 Cal.App.4th at p. 1360, citations omitted.) However, because the trial court did not find against appellants on this ground, we do not reach the issue, and accordingly we have no occasion to apply a de novo standard of review on that question of law. 37 " 'although ignorant or mistaken as to the real facts, was in such a position that he ought to have known them, so that knowledge will be imputed to him. In such a case, ignorance or mistake will not prevent an estoppel.' " (City of Long Beach v. Mansell (1970) 3 Cal.3d 462, 491, fn. 28.)20 Thus, the factual question for the trial court was whether, even though SDCERS did not know that it was making overpayments to appellants, it was in such a position that it ought to have known. Here, the evidence presented at trial supported a finding that prior to the audits conducted in 2013, SDCERS was not in a position that it ought to have known that it was making overpayments to appellants. There was no evidence presented at trial that anything occurred prior to the audits to raise SDCERS's suspicions that there had been an error in the original calculations or that the error was so obvious on its face that SDCERS should have discovered it earlier. At trial, SDCERS's chief benefits officer testified that SDCERS first discovered the errors during the 2013 audits, and no contrary evidence was presented. Accordingly, substantial evidence supports the trial court's finding that 20 Citing Green v. MacAdam (1959) 175 Cal.App.2d 481, 487, appellants contend that " 'negligence satisfies the element of knowledge.' " They argue that because the miscalculation of the pension benefits was necessarily based on negligence by SDCERS, and because SDCERS had all the necessary information to discover the error sooner had it attempted to do so, we should conclude that SDCERS was apprised of the fact that the benefits were incorrectly calculated. We are not persuaded. Green's statement that " 'negligence satisfies the elements of knowledge' " is too simplistic. As we have stated, the proper inquiry, as stated by our Supreme Court is whether a party is "in such a position that he ought to have known" that a mistake was made, not simply whether the party was originally negligent in making the mistake. (City of Long Beach v. Mansell, supra, 3 Cal.3d at p. 491, fn. 28.) 38 SDCERS was not apprised of the fact that it had been making overpayments to appellants. Appellants cite Crumpler v. Board of Administration (1973) 32 Cal.App.3d 567 (Crumpler) and Driscoll v. City of Los Angeles (1967) 67 Cal.2d 297 (Driscoll) to support their claim that the trial court erred in denying their estoppel claim. However, as we will explain, neither case requires a different result here. In Crumpler the city misclassified animal control officers as safety officers, which impacted their pension benefits when the error was discovered. (Crumpler, supra, 32 Cal.App.3d at pp. 570-573.) Crumpler concluded that the city would be estopped from seeking retroactive reclassification of the employees because "[t]he city was apprised of the facts" in that it "knew that petitioners were being employed by the police department as animal control officers at the time it erroneously advised them they would be entitled to retirement benefits as local safety members." (Id. at p. 582.) Here, in contrast, SDCERS did not have any basis for knowing that it had miscalculated appellants' pension benefits until years later when it conducted the audits because the miscalculation was not based on an obvious and known fact such as that the employees in Crumpler were being employed as animal control officers. In Driscoll, the city erroneously advised widows that they were not entitled to pension benefits, causing them to delay in filing a claim. (Driscoll, supra, 67 Cal.2d at pp. 300-305.) Driscoll concluded that the city was estopped from relying on the three- year statute of limitation to deny the widows' claims to future benefit payments. (Id. at p. 310.) In doing so, it relied on a particular rule governing the circumstances in which a 39 public entity may rely on the statute of limitations to deny a claim when public entity's erroneous advice caused the delay. As Driscoll explained, "a city or other public agency is not estopped from asserting the statute of limitations if under all the circumstances 'the nature of the conduct or advice of the city is reasonable when given.' " (Id. at p. 306.) When "the inaccurate advice or information is negligently ascertained or given, the city's conduct may then be deemed to be unreasonable" and estoppel will arise. (Id. at p. 307.) Although Driscoll discusses the concept of negligence while considering the issue of equitable estoppel, that discussion is clearly in the specific context of a statute of limitations claim made by a public entity. Here, the issue is not whether SDCERS is estopped to rely on the statute of limitations to bar a party from seeking relief, and Driscoll is accordingly inapposite. In sum, we conclude that substantial evidence supports the trial court's finding that SDCERS was not apprised of the facts as required for the first element of equitable 40 estoppel, and appellants cite no persuasive authority to convince us to the contrary. 21 As we conclude that the trial court properly denied the equitable estoppel claim based on its finding on the first element, we need not and do not consider the trial court's second basis for rejecting equitable estoppel, namely that the fourth element of equitable estoppel was not established because appellants did not sustain an injury based on SDCERS's incorrect representation as to the amount of monthly pension benefits that they would receive.22 21 We afforded the parties the opportunity to provide supplemental briefing to address an argument concerning the equitable estoppel cause of action that SDCERS extensively discussed it in its trial brief but that it did not identify in its respondent's brief as a ground for affirming the judgment. Specifically, SDCERS argued in the trial court that, as a matter of law, an order equitably estopping SDCERS from recouping the overpayments is not available because such an order would require it to take an action contrary to what is required of it under law. (See, e.g., Medina v. Board of Retirement, Los Angeles County Employees Retirement Assn. (2003) 112 Cal.App.4th 864, 870 [estoppel could not be applied to retirement board to require members to be classified as safety members when they did not meet the applicable statutory definition]; City of Pleasanton v. Board of Administration (2012) 211 Cal.App.4th 522, 542 [estoppel could not be applied to require the treatment of standby pay as pensionable compensation when the applicable statute precluded such treatment].) SDCERS indicated in response to our request for supplemental briefing that to the extent the issue is whether SDCERS is equitably estopped to recoup the overpayments, it does not continue to assert that equitable estoppel is unavailable to appellants as a matter of law. 22 Because we do not discuss the trial court's finding that appellants did not sustain an injury, we need not consider and resolve the parties' dispute as to whether appellants have been injured in that they may not be able to recover from the Internal Revenue Service (IRS) or the State of California the income taxes that they paid on the pension benefits that they now have to repay to SDCERS. 41  4. The Trial Court Properly Concluded That the Doctrine of Laches Does Not Apply Here We next consider appellants' challenge to the trial court's conclusion in its statement of decision that SDCERS is not barred by the doctrine of laches from recouping the overpayments made to Krolikowski and Van Putten. "Laches is based on the principle that those who neglect their rights may be barred, in equity, from obtaining relief. . . . The elements required to support a defense of laches include unreasonable delay and either acquiescence in the matter at issue or prejudice to the defendant resulting from the delay. . . . Generally, laches is a question of fact, but where the relevant facts are undisputed, it may be decided as a matter of law." (City of Oakland, supra, 224 Cal.App.4th at p. 248, citations omitted; see also Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 67 ["Generally, a trial court's laches ruling will be sustained on appeal if there is substantial evidence to support the ruling."].) "Under appropriate circumstances, the defense of laches may operate as a bar to a claim by a public administrative agency. . . if the requirements of unreasonable delay and resulting prejudice are met." (Robert F. Kennedy Medical Center v. Belshe (1996) 13 Cal.4th 748, 760, fn. 9.) " '[L]aches is not available where it would nullify an important policy adopted for the benefit of the public.' " (City of Oakland, at p. 248.) " 'In cases in which no statute of limitations directly applies but there is a statute of limitations governing an analogous action at law, the period may be borrowed as a measure of the outer limit or reasonable delay in determining laches. . . .' The effect of the violation of the analogous statute of limitations is to shift the burden of proof to the 42 plaintiff to establish that the delay was excusable and the defendant was not prejudiced thereby." (Lam v. Bureau of Security & Investigative Services (1995) 34 Cal.App.4th 29, 37.) Here, appellants argue that the analogous statute of limitations is the three-year limitations period for causes of action based on mistake set forth in Code of Civil Procedure section 338, subdivision (d). According to appellants, SDCERS failed to seek recoupment within the three-year limitations period, so that the burden of proof was shifted to SDCERS to establish that its delay in seeking recoupment was excusable and that appellants were not prejudiced. Appellants contend that the trial court therefore erroneously placed the burden on them to prove unreasonable delay and prejudice. In section II.B.1, ante, we discussed and rejected appellants' contention that SDCERS failed to seek recoupment within the three-year statute of limitations period contained in Code of Civil Procedure section 338, subdivision (d). We incorporate that discussion here, and on that basis, we conclude that appellants did not succeed in shifting the burden to SDCERS on the laches claim. Therefore, it remained appellants' burden to establish unreasonably delay and prejudice resulting from the delay. The trial court found that appellants did not establish SDCERS engaged in unreasonable delay in taking action to recoup the overpayment of pension benefits. That 43 finding is supported by substantial evidence.23 Specifically, as we have previously explained, SDCERS did not know of the error in calculating appellants' pension benefits until it conducted the audits in 2013. Promptly upon learning of the mistakes, SDCERS notified appellants and began the administrative process to recoup the overpayments. Further, no evidence was presented at trial to suggest that SDCERS had any suspicion that there may have been a problem with the calculation of appellants' pension benefits, and thus it had no reason to conduct an audit prior to 2013.24 Under those circumstances, the evidence amply supported the trial court's finding that SDCERS did not engage in any unreasonable delay.25 23 The trial court also found that appellants did not establish prejudice resulting from the delay. Because we conclude that the trial court's finding regarding the first element of laches is supported by substantial evidence, we need not and do not consider the trial court's finding regarding lack of prejudice. 24 In their reply brief, appellants contend that a 1992 legal memorandum written by the city attorney to a SDCERS administrator shows that SDCERS engaged in unreasonable delay in discovering the overpayments to appellants and acting to recoup them. We disagree. Based on the controlling law at the time, the 1992 memorandum offers an opinion on the steps that SDCERS could take to recoup an overpayment of pension benefits. It does not discuss any specific problems with calculating benefits that might have led to any overpayments to SDCERS members, and it certainly does not discuss whether the pension benefit calculations were correct as to Van Putten and Krolikowski, as they did not retire until 2000 and 2006 respectively, which is long after the 1992 memorandum was written. Accordingly, the 1992 memorandum does not provide evidence of unreasonable delay. 25 Although we have concluded that substantial evidence supports the trial court's decision that the doctrines of laches and equitable estoppel do not apply because SDCERS promptly took action once it learned of its errors, we are nevertheless sympathetic to appellants' situation as they did not find out until many years after the fact that SDCERS made mistakes in calculating their pension benefits, by which time the overpayments and associated interest amounted to a substantial sum. 44 C. The Trial Court Did Not Abuse Its Discretion in Making the Evidentiary Rulings Challenged by Appellants Appellants challenge two evidentiary rulings made by the trial court during trial. We review the trial court's evidentiary rulings by applying an abuse of discretion standard. (People v. Alvarez (1996) 14 Cal.4th 155, 203 ["appellate court reviews any ruling by a trial court as to the admissibility of evidence for abuse of discretion"]; (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773 [a ruling excluding or admitting expert testimony is reviewed for abuse of discretion].) "A ruling that constitutes an abuse of discretion has been described as one that is 'so irrational or arbitrary that no reasonable person could agree with it' " but the trial court must exercise its discretion "within the confines of the applicable legal principles." (Id at p. 773.) 1. The Trial Court Did Not Abuse Its Discretion in Excluding Conny Jamison's Opinion That SDCERS Acted Unreasonably At the beginning of the bench trial, the trial court considered appellants' request that they be able to introduce the testimony of Conny Jamison, who was a SDCERS Board member and the City's treasurer until 2001. Appellants explained that Jamison would testify regarding her opinion that it was unreasonable for SDCERS "to wait so long before double-checking to see that the pension calculations are correct." The proposed testimony was expected to track Jamison's declaration submitted in connection with the summary judgment motions, in which she stated, "Based on my experience and training as a public pension trustee, it would be unreasonable and imprudent not to ensure 45 that staff accurately calculated a beneficiary's pension, and then failed to audit or double check those calculations promptly." The trial court ruled that it would exclude Jamison's testimony. As an initial matter, the trial court noted that because Jamison was not a percipient witness to the calculation of appellants' pension benefits, she would be testifying as an expert witness. The trial court stated that it would not admit Jamison's expert testimony for two independent reasons. First, Jamison had not been designated as an expert witness. Second, the trial court stated that as the trier of fact, "I don't think I need the assistance of an expert to tell me what is reasonable and what's not reasonable in this area." Appellants contend that the trial court erred in making the ruling for two reasons. First, addressing the trial court's first basis for the ruling, appellants contend that by submitting Jamison's declaration in connection with the summary judgment motions, they "substantially complied" with the requirement that Jamison be designated as an expert witness at trial as required by Code of Civil Procedure section 2034.260. Next, addressing the second basis for the trial court's ruling, appellants point out that Evidence Code section 805 states that "[t]estimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact." We conclude that the first ground set forth by the trial court was a sufficient ground for excluding Jamison's testimony, and we accordingly need not, and do not, reach the second ground. 46  It is undisputed that Jamison was not designated as an expert witness. Appellants both filed expert witness designations, which stated they do "not designate any expert witnesses at this time," and neither of them attempted to file a supplemental designation. Code of Civil Procedure section 2034.300 states that "the trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to do any of the following," including "(a) List that witness as an expert under Section 2034.260" and "(b) Submit an expert witness declaration." Here, even though appellants could plausibly argue that they substantially complied with the requirement that they "[s]ubmit an expert witness declaration" (Code Civ. Proc., § 2034.300, subd. (b)) by submitting Jamison's declaration in connection with the summary judgment motions, they clearly did not comply with the additional requirement that they "[l]ist that witness as an expert under Section 2034.260." (Code Civ. Proc., § 2034.300, subd. (a).) Accordingly, the trial court was well within its discretion to exclude Jamison's expert testimony because she was not properly designated as an expert witness. 2. The Trial Court Did Not Abuse Its Discretion by Admitting Testimony from SDCERS's CEO About the IRS Rules That SDCERS Follows During trial, the trial court overruled appellants' objections to certain testimony by SDCERS's CEO Mark Hovey about the IRS regulations that apply to SDCERS as a tax qualified plan. Appellants contend that the trial court should have sustained their objections to that testimony as it constituted expert testimony on subjects that Hovey was 47 not qualified to opine upon because he is not an attorney.26 In their appellate brief, appellants summarize Hovey's relevant testimony as follows: "• an opinion regarding whether the Internal Revenue Service has regulations that recite what a tax qualified plan such as [SDCERS] can do or should do in the event of a plan failure or error . . . ; "• an opinion that tax law gives SDCERS no flexibility as to whether or not to collect overpayments . . . ; "• an opinion regarding whether the San Diego Municipal Code requires SDCERS to follow IRS regulations . . . ; [¶] and "• an opinion regarding the ramifications from the IRS if SDCERS did not collect in full from Krolikowski and Van Putten." In admitting the testimony, the trial court overruled appellants' continuing objection that the questions "call[ed] for a tax opinion . . . from a lay witness who has no legal training." The trial court explained it was overruling the objection because Hovey was SDCERS's CEO and "is the one that implements" the IRS regulations at SDCERS. Appellants contend the trial court abused its discretion in admitting the evidence. As an initial matter, we note that appellants' argument depends on the premise that Hovey's testimony constituted opinion rather than percipient witness testimony. We note that it appears from the trial court's comments that it overruled appellants' objection, at least in part, because it concluded that Hovey was not offering opinion testimony. Instead, the trial court appears to have concluded that Hovey was testifying about his own personal experience as CEO of SDCERS, including about SDCERS's policies and its implementation of the applicable IRS regulations. 26 We note that although Hovey is not a lawyer, he is a certified public accountant. 48  However, even if Hovey's testimony could be characterized as lay opinion testimony, "[a] trial court has broad discretion to admit lay opinion testimony, especially where adequate cross-examination has been allowed." (In re Automobile Antitrust Cases I and II (2016) 1 Cal.App.5th 127, 145.) Under Evidence Code section 800, "[i]f a witness is not testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is permitted by law, including but not limited to an opinion that is: (a) Rationally based on the perception of the witness; and (b) Helpful to a clear understanding of his testimony." Here, the trial court reasonably could conclude that because Hovey was SDCERS's CEO and was the person who implemented the IRS regulations at SDCERS, his testimony about the IRS regulations that applied to SDCERS was a matter within his own perception and was useful to an understanding of his testimony about SDCERS's practices and procedures, despite the fact that Hovey was not a lawyer. Accordingly, it was within the trial court's discretion to admit Hovey's testimony as lay opinion testimony. Based on the above, we conclude that the trial court did not abuse its discretion in overruling appellants' objections to Hovey's testimony. 49  DISPOSITION The judgment is affirmed. IRION, J. WE CONCUR: BENKE, Acting P. J. AARON, J. 50 Filed 6/14/18 CERTIFIED FOR PUBLICATION COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA VINCENT KROLIKOWSKI, D071119 Plaintiff and Appellant, v. (Super. Ct. No. 37-2015-00006255- CU-OE-CTL) SAN DIEGO CITY EMPLOYEES' RETIREMENT SYSTEM, Defendant and Respondent. CONNIE VAN PUTTEN, Plaintiff and Appellant, (Super. Ct. No. 37-2015-00021007- v. CU-OE-CTL) SAN DIEGO CITY EMPLOYEES' ORDER CERTIFYING OPINION RETIREMENT SYSTEM, FOR PUBLICATION Defendant and Respondent. THE COURT: The opinion in this case filed May 23, 2018, was not certified for publication. It appearing the opinion meets the standards specified in California Rules of Court, rule 8.1105(c), the requests made pursuant to California Rules of Court, rule 8.1120(a) for publication are GRANTED.  IT IS HEREBY CERTIFIED that the opinion meets the standards for publication specified in California Rules of Court, rule 8.1105(c); and ORDERED that the words "Not to be Published in the Official Reports" appearing on page one of said opinion be deleted and the opinion herein to be published in the Official Reports. BENKE, Acting P. J. Copies to: All parties 2 

639 F.Supp. 126 (1986) Charlean WIGGINS, Plaintiff, v. Margaret HECKLER, Secretary of Health and Human Services, Defendant. No. 83-388-CIV-5. United States District Court, E.D. North Carolina, Raleigh Division. March 14, 1986. *127 Charles R. Hassell, Jr., Raleigh, N.C., for plaintiff. Rudolf A. Renfer, Jr., Asst. U.S. Atty., Raleigh, N.C., for defendant. ORDER JAMES C. FOX, District Judge. This matter is before the court on plaintiff's motion for an award of attorney's fees pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d)(1)(B). On February 10, 1986, plaintiff moved for EAJA attorney's fees in the amount of $1,612.50. Defendant has not responded to plaintiff's petition within the time provided by law. This civil action was filed on April 14, 1983, after defendant administratively denied plaintiff's application for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act, as amended. 42 U.S.C. §§ 405(g) and 1383(c)(3). On June 18, 1984, the court adopted an unopposed recommendation of the Magistrate, and ordered this action remanded to the Secretary for rehearing and a proper determination of whether plaintiff retained sufficient residual functional capacity to engage in an alternative job existing in the national economy. Subsequently, upon remand, plaintiff was administratively awarded benefits. The EAJA permits an award of attorney's fees to a qualified prevailing party, other than the United States, in civil actions brought by or against the United States "unless the court finds that the position of the United States was substantially justified or that the special circumstances make an award unjust." 28 U.S.C. § 2412(d)(1)(A).[1] The court has reviewed plaintiff's application for attorney's fees, affidavit of counsel, and memorandum of law, and for the reasons set forth below, the court concludes plaintiff is entitled to attorney's fees under the EAJA. Ordinarily, the government's position in the district court is substantially justified if the United States Attorney does no more than rely on an "arguably defensible administrative record." Guthrie v. Schweiker, 718 F.2d 104, 108 (4th Cir.1983). The finding that a final decision of the Secretary is not supported by substantial evidence does not equate to a finding that the position in the litigation was not substantially justified. Id.; Bennett v. Schweiker, 543 F.Supp. 897 (D.D.C.1982). However, the government has the burden of demonstrating substantial justification for its position. Tyler Business Services, Inc. v. NLRB, 695 F.2d 73 (4th Cir. 1982); Alspach v. Director of Internal Revenue, 527 F.Supp. 225, 229 (D.Md.1981). The government must show that the position had a reasonable basis both in law and fact. Smith v. Heckler, 739 F.2d 144, 146 (4th Cir.1984); Cornella v. Schweiker, 728 F.2d 978, 981-82 (8th Cir.1984); Trujillo v. Heckler, 569 F.Supp. 631, 1439 (E.D.N.Y. 1983). It is possible for the administrative record to be so deficient that the government may not reasonably rely on it. Guthrie v. Schweiker, 718 F.2d at 108. In the case at bar, the government has elected not to respond to plaintiff's motion for an award of fees under the EAJA. Accordingly, the court is unable to find any circumstances that would make such an award unjust. Defendant simply has made no showing of substantial justification and having failed to carry that burden, *128 plaintiffs' motion for attorney's fees under the EAJA is ALLOWED.[2] In all cases involving an award of fees, the Fourth Circuit has held that the guidelines established in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974), must be followed. Barber v. Kimbrell's Inc., 577 F.2d 216 (4th Cir. 1978), cert. denied, 439 U.S. 934, 99 S.Ct. 329, 58 L.Ed.2d 330 (1978). The utilization of the Johnson factors has been modified by the Supreme Court's recent decisions in Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) and Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). The initial step in this evaluation is to determine the number of hours reasonably expended and multiply that number times the customary fee for similar work. Hensley v. Eckerhart, 103 S.Ct. at 1940; Anderson v. Morris, 658 F.2d 246 (4th Cir.1981). In determining a reasonable hourly rate, the court should consider a number of factors, including the experience and skills of the attorney, the quality of the representation, the novelty and complexity of the litigation and the results obtained. Blum v. Stenson, 104 S.Ct. at 1548-49. In addition, the court should consider, to the extent applicable, the remaining Johnson factors. See Redic v. Gary H. Watts Realty Co., 586 F.Supp. 699 (W.D.N.C.1984), rev'd. on other grounds, 762 F.2d 1181 (4th Cir.1985). In determining the number of hours reasonably expended, the court has reviewed counsel's affidavit and the record in general. Based upon this review, the court concludes counsel reasonably expended 21.50 hours in the conduct of this litigation, the exact amount requested by counsel. With regard to a proper hourly rate, the court begins its analysis by turning to a recent 1985 North Carolina Bar Association Survey of typical hourly rates charged by attorneys in this state, and finds the survey, as applied to plaintiff's counsel, would result in a fee of $86 per hour.[3] However, since the maximum rate allowed under the EAJA is generally $75 per hour, 28 U.S.C. § 2412(d)(2)(A)(ii), and counsel only requested that rate in his motion, the court will proceed to utilize the relevant Johnson and Barber factors to determine whether $75 per hour is reasonable for this case or should further be adjusted downward. 1. The Novelty and Difficulty of the Questions Raised. Although the social security framework requires some expertise, this action involved neither novel nor difficult issues. 2. The Skill Required to Properly Perform the Legal Services Rendered. Application of the social security statutes, regulations, procedures, policies and case law requires a degree of expertise and skill. See Blankenship v. Schweiker, 676 F.2d 116 (4th Cir.1982). However, in this case, counsel's brief was not extremely useful to the court in reviewing the administrative record. 3. The Attorney's Opportunity Costs in Pressing the Instant Litigation. Although there is some opportunity cost involved with most actions, this action was decided on the record which minimizes this factor. 4. The Customary Fee for Like Work. See supra. 5. The Attorney's Expectations at the Outset of the Litigation. After losing at the administrative level, the expectation of success, given the scope *129 of review, could not have been high. Nonetheless, this factor is tempered by some deficiencies in the administrative record. 6. The Time Limitations Imposed by the Client or Circumstances. Nothing in the record reflects severe time limitations resulted in pressured working conditions for counsel. 7. The Amount in Controversy and the Results Obtained. Counsel was completely successful in obtaining the relief requested, which resulted in a substantial award for plaintiff. Thus, for a disabled individual with little or no income, the beneficial results of the favorable decision in the instant case are obvious. 8. The Experience, Reputation and Ability of the Attorney. Counsel's work in the case sub judice was competent. However, the court is unaware of counsel's experience in social security cases, since counsel failed to file any background information in his affidavit. 9. The Undesirability of the Case Within the Legal Community in Which the Suit Arose. To the extent this factor is applicable to social security actions, representation is not undesirable within this community. 10. The Nature and Length of the Professional Relationship Between Attorney and Client. This is not relevant to this case and thus does not require adjustment of the fee. 11. Attorney's Fee Awards in Similar Cases. Premised on awards in similar cases, the court finds the rate of $65-$75 per hour to be reasonable and in line with awards in those cases. See, Shumate v. Harris, 544 F.Supp. 779 (W.D.N.C.1982); Ocascio v. Schweiker, 540 F.Supp. 1320 (S.D.N.Y. 1982); Ex parte Duggan, 537 F.Supp. 1198 (D.S.C.1982). In addition, this range is consistent with awards in other cases in the Eastern District of North Carolina. See, e.g., Butler v. Heckler, 639 F.Supp. 14 (1985); Jones v. Heckler, No. 83-41-CIV-7 (September 28, 1984) [Available on WESTLAW, DCTU database]; Cain v. Heckler, No. 81-85-CIV-3 (May 3, 1984) [Available on WESTLAW, DCTU database]. Upon a review of the above factors, the court concludes that $70.00 per hour is the appropriate hourly rate for this case. The nature and quality of the work involved simply does not merit the maximum EAJA hourly rate. Accordingly, the base amount is computed as follows: 21.50 hours × $70 = $1,505.00. Furthermore, since this is not a case where the success achieved was "exceptional" or the risk extraordinary, See Blum v. Stenson, supra, plaintiff's counsel is not entitled to an enhancement award. Nor are there present any cost-of-living or special factors under the EAJA which would entitle plaintiff to an increased award. See 28 U.S.C. § 2412(d)(2)(A)(ii). It is therefore ORDERED that: 1. The reasonable value of the services rendered by plaintiff's counsel properly taxable under the Equal Access to Justice Act is $1,505.00, which sum shall be paid by the United States directly to counsel for the claimant; and 2. This amount shall constitute counsel's full and only fee for representing the plaintiff in the district court in this action. This order does not preclude counsel from receiving an additional fee from the defendant for his services at the administrative level. 42 U.S.C. § 406(b)(1).[4] SO ORDERED. NOTES [1] The newly enacted 28 U.S.C. § 2412(d)(2)(D) provides: "... `position of the United States' means, in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based;...." See Holden v. Heckler, 615 F.Supp. 686, 687-89 (N.D.Ohio 1985). [2] A brief review of the record indicates the Secretary's concession to plaintiff's motion is justified since at both the administrative and judicial levels, the defendant failed to credit uncontradicted testimony of disability from the plaintiff, her previous employer and her treating physician. [3] The court notes that the rate schedules reflected in the survey are simply for "typical" work conducted by attorneys in North Carolina, based on their geographic location, firm size and date of admission to the bar, and do not account for the type of work performed or the skill required to perform it. [4] Plaintiff's motion for an award of fees by this court for work at the administrative level is DENIED. That decision must be made by the defendant.

NO. 07-08-0342-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B OCTOBER 1, 2008 ______________________________ ANTOIN DESHON LIVINGSTON, APPELLANT v. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY; NO. 18,943-B; HON. JOHN B. BOARD, PRESIDING _______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. ON MOTION TO DISMISS Pending before the Court is appellant’s motion to dismiss his appeal. Appellant and his attorney have both signed the motion. Tex. R. App. P. 42.2(a). No decision of this Court having been delivered to date, we grant the motion. Accordingly, the appeal is dismissed. No motion for rehearing will be entertained and our mandate will issue forthwith. James T. Campbell Do not publish. Justice 

425 F.2d 1244 Carl H. WIENBERGv.The UNITED STATES. No. 161-69. United States Court of Claims. May 15, 1970. Glenn R. Graves, Washington, D. C., attorney of record, for plaintiff. C. Michael Sheridan, Court of Claims Section, Dept. of Justice, with whom was Asst. Atty. Gen., William D. Ruckelshaus, for defendant. Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS, COLLINS, SKELTON and NICHOLS, Judges. ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT COLLINS, Judge. 1 In this action, brought pursuant to the provisions of the Universal Military Training and Service Act, 50 U.S.C.App. §§ 451-473 (1964), plaintiff, Carl H. Wienberg, is seeking to recover back salary wrongfully withheld as the result of the failure of the Internal Revenue Service (IRS) to promote him in absentia while he was in the military service. Both parties have filed motions for summary judgment, contending that there are not material issues of fact and that they are entitled to judgment as a matter of law. We find that the decision of the Board of Appeals and Review (BAR) of the Civil Service Commission holding that plaintiff is not entitled to recover back pay should be accorded finality, and, for reasons to be stated in this opinion, we enter judgment for defendant dismissing plaintiff's petition. 2 On July 8, 1963, plaintiff was hired as an Internal Revenue Agent (GS-7, Step 1) by the Audit Division of the Michigan District of the IRS. Thereafter, plaintiff went through a training program, completing classroom and on-the-job training satisfactorily. On February 17, 1964, he was placed on military leave, but he continued to perform his work until March 2, 1964, when he was released for active military duty. Plaintiff had already been informed in a letter by James R. Pendergraff, Chief, Employee Relations and Placement Section, dated February 11, 1964, that "During your absence for military duty you will be given the same consideration for promotion that you would have received had you remained in your present position, and, if you are selected for any higher grade position, your promotion will be made in absentia." Plaintiff became eligible for promotion to GS-9 on July 8, 1964, but his supervisors neglected to even consider him. Thereupon on January 17, 1966, when plaintiff returned to the IRS from the military, he was reemployed at the grade of GS-7, Step 3. Three months later on April 24, 1966, he was promoted to grade GS-9. 3 In July 1966, plaintiff discussed with one of his supervisors, Edmond T. Strasz, the reasons why he had not been promoted in absentia while in the military service. Mr. Strasz advised plaintiff that inadvertently he had not been considered for promotion in July 1964, but that looking back on plaintiff's performance in the training program, he would not have recommended plaintiff for promotion at that time anyway. 4 As a result, plaintiff filed a formal complaint with the Chief of the Audit Division alleging that he should have been promoted in absentia to GS-9 in July 1964, and further that, had this been done, he would have been eligible for promotion to GS-11 in July 1965. A hearing was held, and it was determined that plaintiff's complaint was without merit since there was no basis for a retroactive promotion. His appeal to the District Director of Internal Revenue was likewise rejected. However, in a further appeal to the Regional Director of the Civil Service Commission, it was decided, on October 9, 1967, without a hearing, that plaintiff should be promoted retroactively to grade GS-9, effective July 1964. The Regional Director felt that, based on the progress plaintiff was making at the time of his entry into the military, he would surely have been promoted had he not gone into the service. The IRS appealed this decision to the BAR, which determined on January 26, 1968, that plaintiff had not established his right to be promoted to GS-9 while on military duty. Thereupon, the decision of the Regional Director was reversed, and plaintiff's claim for back pay was denied. Plaintiff then filed suit in this court on March 21, 1969, urging us to reverse the decision of the BAR and grant him the relief requested, namely, the back pay to which he would be entitled based on retroactive promotions to grade GS-9 in July 1964 and grade GS-11 in July 1965. 5 This action was filed pursuant to certain provisions of the Universal Military Training and Service Act, 50 U.S.C.App. §§ 451-473 (1964). Section 459(b) specifically provides: 6 (b) Reemployment rights. 7 In the case of any such person who, in order to perform such training and service, has left or leaves a position (other than a temporary position) in the employ of any employer and who (1) receives such certificate, and (2) makes application for reemployment within ninety days after he is relieved from such training and service or from hospitalization continuing after discharge for a period of not more than one year — 8 (A) if such position was in the employ of the United States Government, its Territories, or possessions, or political subdivisions thereof, or the District of Columbia, such person shall — 9 (i) if still qualified to perform the duties of such position, be restored to such position or to a position of like seniority, status, and pay; or 10 * * * * * * In addition section 459(c) (2) states: 11 (2) It is declared to be the sense of the Congress that any person who is restored to a position in accordance with the provisions of paragraph (A) or (B) of subsection (b) [of this section] should be so restored in such manner as to give him such status in his employment as he would have enjoyed if he had continued in such employment continuously from the time of his entering the armed forces until the time of his restoration to such employment. 12 Thus, it can be seen that the basic underlying principle of this act is that he who is "called to the colors [is] not to be penalized on his return by reason of his absence from his civilian job." Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 284, 66 S.Ct. 1105, 1111, 90 L.Ed. 1230 (1946). However, this certainly does not imply that a returning veteran has an absolute right to be promoted in absentia while he is away on military duty. Instead, the distinction between when a returning veteran is entitled to promotion in absentia and when he is not is laid down by the Supreme Court in the two cases of Tilton v. Missouri Pac. R. R., 376 U.S. 169, 84 S.Ct. 595, 11 L.Ed.2d 590 (1964), and McKinney v. Missouri-K.-T. R. R., 357 U.S. 265, 78 S.Ct. 1222, 2 L.Ed.2d 1305 (1958). 13 In McKinney, the Court agreed that section 459(c) (2), supra, entitled the returning employee to a position comparable to the one he occupied before he left and possibly even comparable to the one he would now hold had it not been for the military service. However, the Court limited the provision only to those situations where changes and advancements in status would occur simply by virtue of continued employment or some form of automatic progression. Hatton v. Tabard Press Corp., 406 F.2d 593 (2d Cir.1969) (promotion automatic as long as employee meets minimum standards necessary to avoid discharge). As a result, section 459(c) (2) was held not to apply to those situations where promotion was dependent upon such factors as ability, experience, effort, and the employer's discretion. Poore v. Louisville & Nashville R. R., 235 F.2d 687 (5th Cir.1956); Addison v. Tennesee Coal, Iron & R. R., 204 F.2d 340 (5th Cir. 1953). 14 In Tilton, the Court followed this same standard and found that plaintiffs' promotions, upon completion of the training period, were automatic and neither discretionary with their employer nor dependent upon their ability. Instead, their right to a promotion was dependent simply upon the passage of time. (Plaintiffs had to complete 1,040 days of actual work as carmen mechanics before they could acquire permanent seniority as journeymen.) But see Poore v. Louisville & Nashville R. R., supra, where it was held that promotion was not automatic with the mere elapse of 1,040 days. 15 In the instant case, plaintiff is not contending that he was entitled to an automatic promotion.1 Instead, he is arguing mainly that once his promotion was considered by his supervisors, they applied an improper standard in determining whether he should have been promoted in absentia. Thus, the McKinney and Tilton cases, while helpful to a certain extent, are certainly not dispositive of this case. 16 More specifically, plaintiff urges that the correct standard to be applied in this case is the one laid down in section 459(c) (2), supra, and in IRS Manual Supp. 18G-4, § 3.02 (1957), which reads as follows: 17 It is the policy of the Revenue Service that all trainees called into the military service (1) who have substantially completed their training courses; and (2) whose progress has been such that they would have been promoted had they remained in the Revenue Service; [sic] will be promoted in absentia. 18 Based on these provisions, plaintiff contends that the IRS was obliged to consider on July 8, 1964, the quality of his work from July 8, 1963, to March 2, 1964, and then project how much improvement he would have made between March 2, 1964, and July 8, 1964. By considering both these factors, management could then properly determine whether plaintiff would have been promoted had he remained on the job. Plaintiff contends that management only considered the quality of his work at the time he left for military service and did not base its decision on a projection of how much he might have improved over the next 4 months. Had the IRS made such a projection, plaintiff contends that there is no doubt but that he would have been promoted in absentia. 19 To support the above contention plaintiff relies on a number of factors and pieces of evidence. For instance, he places great emphasis on the testimony of Mr. Strasz at the grievance hearing. In response to a question asking Mr. Strasz whether he thought plaintiff would have been promoted had he continued to improve as he had up until the time of his discharge, Strasz replied: "He probably would have been promoted, yes." Plaintiff also points to the evaluation reports, all of which rate him in the "good" or "very good" category as opposed to "fair" or "unsatisfactory."2 He then refers to a statement by his on-the-job instructor, Mr. William R. Murphy, in a field audit report which reads: "In conclusion, Mr. Wienberg has shown during the field audit portion of the on the job training program that if he continues to work hard he will develope [sic] into a good Internal Revenue Agent." And finally he points out that within 3 months after his return to the job from the military, he was promoted to GS-9.3 20 Despite the above-mentioned factors, there is really nothing substantial in the record to support plaintiff's claim that he was judged solely on what he had done prior to his military service and not on what sort of progress he would have made had he remained on the job. As a matter of fact, there is evidence and testimony to the contrary. Mr. Strasz specifically testified at the hearing that his determination not to promote plaintiff was based on all the facts as of the time plaintiff became eligible for promotion, which was of course in July 1964. He further stated that his answer that plaintiff "probably would have been promoted" was purely hypothetical and conjectural since it was based strictly on the assumption that plaintiff's rate of progress would continue up until the time of his promotion. In addition, Mr. Strasz went on to testify that he did give some consideration to plaintiff's rate of progress, but there were just not enough tangible factors on which he could reach a conclusion that plaintiff should have been promoted. This testimony is further buttressed by what Strasz said in a letter to plaintiff on July 28, 1966: 21 At the end of the training phase I had a discussion with you and pointed out to you that, although you had improved, you would have to show sustained performance and improvement during the rest of your probationary period to be retained as an internal revenue agent. 22 * * * * * * 23 If I had been asked to consider if you should have been promoted in absentia, I feel I would not have recommended the promotion. This conclusion is based on the fact that you needed considerable aid and guidance to be retained in the program and on the fact that there was no opportunity to determine if you had improved sufficiently to be promoted to GS-9. 24 In addition, it should be pointed out that this same letter contained a listing of what Strasz considered to be plaintiff's most glaring weaknesses, namely lack of self-confidence in his ability and his authority as a revenue agent, general weakness in auditing, and inability to deal with a taxpayer when the atmosphere became strained. These were the main points which caused Strasz to question whether plaintiff would be able to successfully perform the duties of an internal revenue agent. 25 Thus, in regard to this first claim by plaintiff that the agency did not apply the correct standard in considering his promotion, we feel that the evidence in the record is to the contrary and that, in denying his promotion, plaintiff's supervisors considered all aspects of his work both as to performance and expected progress. Certainly, it would be an abuse of discretion for an employer to become too speculative and conjectural in determining just how much progress and development might be attained by an employee during a period in which he is absent from work. Consequently, the BAR was correct when it stated that "the agency did give consideration to the appellant's retroactive promotion to the date he should have been considered for promotion in absentia * * *." (Emphasis added.) 26 Plaintiff's next argument is that the proper burden of proof to be applied in such a case as this is that plaintiff must prove his claim to a "reasonable certainty" as specified in Tilton v. Missouri Pac. R. R., supra, and not that he must prove his claim by "clear and convincing" evidence as required by the BAR. Assuming for the moment that the BAR did require plaintiff to meet a "clear and convincing" burden of proof, we still cannot accept this contention by plaintiff. What the Court is saying in Tilton (and also what the court of appeals is saying in Power v. Northern Ill. Gas Co., 388 F.2d 427 (7th Cir.1968)) is that a plaintiff, in order to recover under the Universal Military Training and Service Act, must show with "reasonable certainty" that advancement would have occurred simply by virtue of continuing employment. In both the Tilton and Power cases, the respective courts were dealing with situations where the plaintiffs were claiming that their advancement was automatic as opposed to being discretionary. Thus, the courts were simply requiring that the plaintiffs show with "reasonable certainty" that their advancement would have occurred automatically with the passage of time. In the case at hand, plaintiff never argued before the BAR that his promotion was automatic with the passage of time.4 Consequently, the so-called requirement that a "reasonable certainty" burden of proof must be employed would not apply to this case since the claim (claim of automatic promotion) giving rise to this particular burden of proof was never made. 27 In addition, if we were to transfer the requirement of "reasonable certainty" to claims such as plaintiff's first claim which was just discussed, we would still find that plaintiff had not satisfied his burden of proof. Based on the entire record, we could not say that plaintiff established with "reasonable certainty" that, had his promotion been given timely consideration and had the proper standard been applied, he would have been promoted to GS-9 in July 1964. 28 Plaintiff's final argument is one which was not argued before the BAR but instead was presented for the first time by plaintiff during his oral argument before this court. Plaintiff's contention is that it is a policy of the IRS in the type of training program found in this case to either promote or fire a probationary employee after 10 months.5 Thus, the assumption is that since plaintiff was not fired, under the above-stated informal policy, he should have been promoted. 29 There are several reasons why this argument by plaintiff must fail. First of all, there is absolutely nothing concrete in the record to sustain the existence of such an unwritten policy. In addition, the mere fact that plaintiff failed to present this argument at the administrative level prevents us from attaching any weight to it. Haynes v. United States, 418 F.2d 1380, 190 Ct.Cl. 9 (Dec.1969); Pine v. United States, 371 F.2d 466, 467-468, 178 St.Cl. 146, 148 (1967). This court has repeatedly held that failure to present a claim at the administrative level amounts to a failure to exhaust administrative remedies in regard to that claim, thus precluding this court from granting relief on that ground. Even if we wanted to consider this claim by plaintiff, we would have to remand the case to the trial commissioner for a finding of fact in regard to the actual existence of such a custom. However, to take such a course of action would be an abuse of discretion by this court since there is nothing to support the existence of such a practice other than plaintiff's mere oral allegation that such a custom exists. Consequently, we are obliged to refuse to consider this claim by plaintiff on the basis of his failure to first pursue it at the administrative level. 30 Although not directly relevant to the issues raised by plaintiff, it is still helpful to refer to the provisions in the Internal Revenue Manual (1964) relating to promotion under the training and development programs. For instance, 1861.82 provides: 31 (3) An important aspect of these programs is the need for timely promotion of participating employees. On the other hand, promotions must not be made automatically, or based solely upon the completion of a specified period of time. 32 (4) Although there is no evidence that promotions under these programs have become automatic, it is desirable to emphasize the responsibility of all concerned with these programs, especially the primary and secondary supervisory levels, to continuously assure themselves that promotions do not become automatic. Also 1861.83 states: 33 (1) All promotions under the training and development programs must be based upon a positive determination by appropriate supervisory levels that the employees have actually demonstrated their capacity to perform the higher level duties of the positions to which they are promoted. * * * (Emphasis added.) 34 These provisions show that not only are promotions not automatic, but the supervisor has a positive obligation to assure himself that his employees have the actual demonstrated ability to perform the work of the next highest grade. It is obvious that Mr. Strasz in this case did not feel that plaintiff in July 1964 had achieved the necessary progress or had demonstrated the ability to perform the duties of a GS-9. Since there is no doubt but that this is a matter purely within the judgment and discretion of the employee's supervisor, we would clearly be overstepping our bounds if we were to substitute our judgment for that of plaintiff's supervisor. Tierney v. United States, 168 Ct.Cl. 77 (1964); Umbeck v. United States, 149 Ct.Cl. 418 (1960); Bortin v. United States, 138 F. Supp. 251, 133 Ct.Cl. 856 (1956); accord, Powell v. Brannan, 91 U.S.App.D. C. 16, 196 F.2d 871 (1952); see Gearinger v. United States, 412 F.2d 862, 188 Ct.Cl. 512 (1969); Boruski v. United States, 155 F.Supp. 320, 140 Ct.Cl. 1 (1957). The general rule against judicial promotions was well stated in Tierney v. United States, supra at 80: 35 The power of appointment is within the discretion of the head of a department. It is an executive function which involves exercising the discretion of the executive. * * * If this court were to grant recovery to plaintiff it would in effect bestow upon plaintiff a promotion which he never received. In so doing, this court would be making an administrative decision. Such action would be a clear usurpation by the judiciary of an administrative function. * * * 36 In addition, we cannot say that the action of plaintiff's supervisor or of the IRS was in any way arbitrary, capricious, or in bad faith. See Umbeck v. United States, supra; Carter v. Forrestal, 85 U.S.App.D.C. 53, 175 F.2d 364, cert. denied, 338 U.S. 832, 70 S.Ct. 47, 94 L.Ed. 507 (1949). To the contrary, we find that the agency decision was supported by sufficient evidence to justify its belated refusal to grant plaintiff a retroactive promotion. 37 We therefore, find that, in evaluating plaintiff's record for purposes of promotion, his supervisor did not apply the wrong standard, nor was his decision arbitrary or capricious. Furthermore, based on the regulations cited, promotion in plaintiff's case was not automatic but was within the discretion of his supervisor and was to be based on the employee's performance and ability. Therefore, the decision of the BAR (which did not apply the wrong burden of proof) must be upheld and judgment granted for defendant. Plaintiff's motion for summary judgment is denied; defendant's motion for summary judgment is granted; and plaintiff's petition is dismissed. Notes: 1 Plaintiff did not make an argument in his pleadings or at the administrative level that he was entitled to an automatic promotion. It was not until his oral argument before this court that plaintiff contended that, due to a special practice by the IRS in regard to probationary employees, he should have been promoted automatically. This aspect of plaintiff's case will be discussed in detail later in this opinion 2 In answer to this reference by plaintiff to his good evaluation reports, defendant cited a number of cases, all of which held that an agency could not be prevented from removing an employee on the basis of unsatisfactory performance simply because he had been given satisfactory performance ratings. Armstrong v. United States, 405 F.2d 1275, 186 Ct.Cl. 539, cert. denied, 395 U.S. 934, 89 S.Ct. 1997, 23 L.Ed.2d 419 (1969); Angrisani v. United States, 172 Ct.Cl. 439 (1965);see Chisholm v. United States, 149 Ct.Cl. 8 (1960); Thomas v. Ward, 96 U.S.App. D.C. 302, 225 F.2d 953 (1955), cert. denied, 350 U.S. 958, 76 S.Ct. 348, 100 L. Ed. 833 (1956). 3 It would definitely be improper for us to use plaintiff's performance in his job following his return from the service as a guideline for projecting his performance during the 4 months following his entrance into the military. Much can happen to an individual during a 2-year period to change his attitude, ability, and overall performance, Also, it certainly would have been wrong for plaintiff's supervisors to have considered this factor since their determination was to be based on the situation as of July 1964 4 See note 1, where reference is made to such an argument being made for the first time by plaintiff during his oral presentation before this court 5 In Hatton v. Tabard Press Corp., supra, such a policy actually existed in defendant's printing business, whereby an employee such as the plaintiff, who was a miscellaneous composing room employee, would either be promoted or discharged for incompetence

491 F.Supp.2d 232 (2007) CITIBANK, N.A., Plaintiff, v. ALLIED MANAGEMENT GROUP, INC.; Rafael Portela Rodriguez, Maritza Botella Barcelo, and their Conjugal Partnership; The Two Towers Corporation; Investors and Developers Consultants, Inc.; Allied Investment, Inc.; Marks Incorporated, Defendants. Civil No. 06-1193 (GAG). United States District Court, D. Puerto Rico. June 7, 2007. *233 Angel Sosa-Baez, Jaime E. Toro-Monserrate, Toro, Colon, Mullet, Rivera & Sifre, Sifre, PSC, San Juan, PR, for Plaintiff. Jose L. Gonzalez-Castaner, Gonzalez Castaner & Morales Cordero Law Office, San Juan, PR, for Defendants. OPINION AND ORDER GELPI, District Judge. This is a diversity action for breach of contract. Citibank commenced it after Defendants allegedly failed to pay Citibank post-closing fees arising from certain loan transactions whereby Citibank provided Defendants with financing to acquire the buildings known as Citibank Towers and Plaza del Este commercial center. The matter is before the court on the Portela Defendants'[1] motion for partial summary judgment. In this motion, the Portela Defendants argue that Citibank is not entitled to collect any post-closing fees with respect to the Citibank Towers loans because its right to collect such fees expired under the terms of the loan agreements and because Citibank released the Portela Defendants from any claims arising out of those loans. After reviewing the pleadings and pertinent law, the court GRANTS the Portela Defendants' motion for partial summary judgment (Docket No. 92). I. Relevant Factual and Procedural Background The parties' statements of material facts, credited only to the extent either admitted or properly supported by record citations in accordance with Local Rule 56 and viewed in the light most favorable to Plaintiff, reveal the following undisputed material facts. On March 31, 1988, Lincoln Realty, Inc. ("Lincoln") executed two loan agreements with Citibank to purchase the buildings known as Citibank Towers. See Docket No. 94 at ¶ 2. The first agreement is in the amount of eleven million dollars ($11,000,000.00) and has no provision for the payment of post-closing fees. Id. at ¶ 3. The second agreement is in the amount of two million five hundred thousand dollars ($2,500,000.00) and contains a provision for the payment of post-closing fees in the form of a participation interest in the rental income and sales proceeds of Citibank Towers. Id. at ¶ 4. Section 11 of this loan agreement describes the post-closing fees. Of relevance to this case, Section 11.1 states: The obligation of the Borrower to deposit the Excess Income in the escrow account and the right of the Bank to receive the Post Closing Fee agreed to hereunder shall survive the repayment of this Loan or the Loan and Security Agreement (whether by prepayment or otherwise) and shall continue until the Building Complex is sold to or refinanced with a third party unaffiliated to or controlled by the Borrower and/or the Guarantors (as such term is herein defined) provided further that it is of the essence hereof and Borrower so accepts that this payment covenant shall be subject *234 to the representation made by Borrower in Section 6.1.15 hereof. See Exhibit II, Docket No.1 at p. 46. With respect to the interest in the sales proceeds of Citibank Towers, Section 11.2 provides: Notwithstanding anything to the contrary in this Agreement, the Bank shall have, at its option, the right to demand and be paid the agreed Post Closing Fee equal to Fifty Percent (50%) of the Excess Sales Income based on the fair market value of the Building Complex agreed to between Borrower and the. Bank at the Maturity Date of the Loan and Security Agreement in the event the Building Complex has not been sold by that date, provided that in the event there is no agreement as to the referenced fair market value, then in such event the aforesaid fair market value for the Building Complex shall be determined by the following appraisal procedures. . . . Id. at 46-47. Additionally, this loan agreement provided Citibank with "a right of first offer with respect to any proposed refinancing of the Properties." Id. at 41. On June 13, 1990, Lincoln executed another loan agreement with Citibank. Id. at ¶ 11. The total amount of this loan is three million eight hundred fifty thousand dollars ($3,850,000.00). Id. at ¶ 12. In this loan agreement, Defendants restated their commitment to pay the post-closing fees under the second 1988 loan agreement. Id. at ¶ 14. Section 11 of this loan agreement describes the post-closing fees. Of relevance to this case, Section 11.1 states: The obligation of the Borrower to deposit the Excess Income in the escrow account and the right of the Bank to receive the Post Closing Fee agreed to hereunder shall survive the repayment of the Loan and Security Agreement or the Loans or this Agreement (whether by prepayment or otherwise) and shall continue until the Building Complex is sold to or refinanced with a third party unaffiliated to or controlled by the Borrower and/or the Guarantors (as such term is herein defined) provided further that it is of the essence hereof and Borrower so accepts that this payment covenant shall be subject to the representation made by Borrower in Section 6.1.23 hereof. See Exhibit III, Docket No. 1 at p. 38. With respect to the interest in the sales proceeds of Citibank Towers, Section 11.2 provides: Notwithstanding anything to the contrary in this Agreement, the Bank shall have, at its option, the right to demand and be paid the agreed Post Closing Fee equal to Fifty Percent (50%) of the Excess Sales Income based on the fair market value of the Building Complex agreed to between Borrower and the Bank on March 30, 1991 and every third anniversary of the said date thereafter or at the time of refinancing with any third party in the event the Building Complex has not been sold or refinanced by that date, provided that in the event there is no agreement as to the referenced fair market value, then in such event the aforesaid fair market value for the Building Complex shall be determined by the following appraisal procedures. . . . Id. at 38-39. Additionally, this loan agreement provided Citibank with "a right of first offer with respect to any proposed refinancing of the Properties." Id. at 34. In mid 1997, Lincoln decided to refinance the Citibank Towers loans. See Docket No. 94 at ¶ 19. Shortly thereafter, Lincoln asked Citibank to provide the loan for the refinancing. Id. Unable to reach an agreement with Citibank, Lincoln refinanced *235 the Citibank Towers loans with third parties Chase Manhattan Bank and Bank Trust on September 4, 1998. Id. at ¶ 20. These financial institutions were neither affiliated with nor controlled by the borrower or the guarantors. Id. On March 31, 2005, Lincoln sold the Citibank Towers. Id. Alleging that Defendants failed to pay post-closing fees in connection with the Citibank Towers loans and another loan agreement not relevant to the motion before the court, Citibank filed this suit on February 22, 2006. See Docket No. 1. On February 14, 2007, the Portela Defendants moved for partial summary judgment. See Docket Nos. 92-94. Citibank opposed this motion on March 9, 2007. See Docket Nos. 96-97. On March 19, 2007, the Portela Defendants filed a reply to Citibank's opposition. See Docket No. 98. Citibank filed a sur-reply on April 18, 2007. See Docket No. 112. II. Summary Judgment Standard Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that the is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A factual dispute is "genuine" if it could be resolved in favor of either party, and "material" if it potentially affects the outcome of the case. Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 19 (1st Cir.2004). The moving party has the burden of establishing the nonexistence of a genuine issue of material fact. Celotex, 477 U.S. at 325, 106 S.Ct. 2548. This burden has two components: (1) an initial burden of production that shifts to the nonmoving party if satisfied by the moving party; and (2) an ultimate burden of persuasion that always remains on the moving party. Id. at 331. The moving party may discharge its burden by "pointing out to the district court . . . that there is an absence of evidence to support the nonmoving party's case." Id. After the moving party makes this initial showing, the "burden shifts to the nonmoving party with respect to each issue on which he has the burden of proof, to demonstrate that a trier of fact reasonably could find in his favor." DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir.1997) (citing Celotex, 477 U.S. at 322-25, 106 S.Ct. 2548). To meet this burden, the nonmoving party "may not rest upon the mere allegations or denials of the adverse party's pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The court must view the record and all reasonable inferences in the light most favorable to the nonmoving party. Id. If the court finds that some genuine factual issues remain, the court must deny the motion. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). III. Legal Analysis At issue in this case is whether Citibank's right to collect post-closing fees arising from the Citibank Towers loans expired under the term of the loan agreements. "As a civil law jurisdiction, Puerto Rico eschews common law principles of contract interpretation in favor of its own civil code derived from Spanish law." Borschow Hosp. and Medical Supplies, Inc. v. Cesar Castillo Inc., 96 F.3d 10, 15 (1st Cir.1996) (citing Guevara v. Dorsey Labs., Div. of Sandoz, Inc., 845 F.2d 364, 366 (1st Cir.1988) ("The Supreme Court of Puerto Rico has made clear that the common law of the United States is not controlling when filling gaps in the civil law system.")). *236 Thus, the court turns to Article 1233 of Puerto Rico's Civil Code, which "determines the manner in which courts should interpret contracts under dispute as to the meaning of their terms." Hopgood v. Merrill Lynch, Pierce, Fenner & Smith, 839 F.Supp. 98, 104 (D.P.R.1993), aff'd, 36 F.3d 1089, 1994 WL 510135 (1st Cir.1994). Article 1233 provides: If the terms of a contract are clear and leave no doubt as to the intentions of the contracting parties, the literal sense of its stipulation shall be observed. If the words should appear contrary to the evident intention of the contracting parties, the intention shall prevail. P.R. Laws. Ann. Tit. 31 § 3471 (1990). In essence, Article 1233 "mandates that courts enforce the literal sense of a written contract, unless the words are somehow contrary to the intent of the parties." Home Ins. Co. v. Pan American Grain & Mfg. Co., Inc., 286 F.Supp.2d 190, 194 (D.P.R.2003). When the agreement is clear and unambiguous, the court should ignore extrinsic evidence and enforce the terms of the contract. Borschow, 96 F.3d at 15-16. See also Fernandez-Fernandez v. Municipality of Bayamon, 942 F.Supp. 89, 94 (D.P.R.1996) ("Once a court determines that the terms of a contract are sufficiently clear so that only one meaning is possible, the court cannot dwell on the `alleged' intent of the parties at the time they entered into the contract."); Nike Intern. Ltd. v. Athletic Sales, Inc., 760 F.Supp. 22, 24 (D.P.R.1991) ("Where contract terns and clauses are clear and unambiguous courts should abstain from speculating about possible intentions of parties and should interpret them according to their will expressed at the time of its execution."). For Article 1233 purposes, "an agreement is `clear' when it can `be understood in one sense alone, without leaving any room for doubt, controversies or difference of interpretation.'" Borschow, 96 F.3d at 15 (quoting Executive Leasing Corp. v. Banco Popular de Puerto Rico, 48 F.3d 66, 69 (1st Cir.1995)). Here, the Portela Defendants argue that according to the clear language of the Citibank Towers loans, Citibank's right to collect post-closing fees ended on September 4, 1998, the date when Lincoln refinanced with Chase and Bank Trust. The relevant provision is Section 11.1 of the 1988 and 1990 loan agreements. This provision states that "[t]he obligation of the Borrower to deposit the Excess Income in the escrow account and the right of the Bank to receive the Post Closing Fee . . . shall survive the repayment of this Loan . . . (whether by prepayment or otherwise) and shall continue until the Building Complex is sold to or refinanced with a third party unaffiliated to or controlled by the Borrower and/or the Guarantors. . . ." See Exhibit II, Docket No.1 at p. 46; Exhibit III, Docket No. 1 at p. 38. The Portela Defendants interpret this provision as ending Citibank's right to collect post-closing fees on the date that Lincoln refinanced the Citibank Towers loans. Citibank contends that the Portela Defendants' interpretation is incorrect for several reasons. First, Citibank maintains that Section 11.1 refers to the obligation to deposit Excess Income in an escrow account, not to the obligation to pay post-closing fees. The court disagrees. Section 11.1 covers both "[t]he obligation of the Borrower to deposit the Excess Income in the escrow account and the right of the Bank to receive the Post Closing Fee. . . ." Id. (emphasis added). The bank's right to receive the post-closing fee is synonymous to the borrower's obligation to pay the post-closing fee. Thus, the court finds that Section 11.1 also refers to the borrower's obligation to pay post-closing fees. *237 Second, Citibank argues that the "until" provision in Section 11.1 limits the period during which the Rental Income post-closing fee would arise, not the period during which it could be collected. This argument is unavailing. Section 11.1 provides that the borrower's obligation to deposit Excess Income in the escrow account and the bank's right to receive post-closing fees survive the repayment of the loans "until the Building Complex is sold or refinanced with a third party unaffiliated to or controlled by the Borrower and/or the Guarantors." Id. (emphasis added). Excess Income includes both the Rental Income post-closing fee and the Sales Income post-closing fee. See Exhibit II, Docket No.1 at pp. 41-42; Exhibit III, Docket No. 1 at p. 34. Moreover, an interpretation that Section 11.1 limits the period during which post-closing fees would arise is flawed because it fails to give meaning to the provision about the bank's right to receive post-closing fees. The court rejects such an interpretation because "[i]t is well-established that courts should avoid interpretations that render a provision of an agreement surplusage." In re Advanced Cellular Systems, Inc., 483 F.3d 7, 12 (1st Cir.2007) (citing Restatement (First) of Contracts § 236 (1932)). The only reading of Section 11.1 that takes into account all the words and the sentence structure is that Citibank's right to receive post-closing fees expired on the date that Lincoln refinanced the Citibank Towers loans. Third, Citibank posits that if the Portela Defendants' interpretation is correct, then Citibank's right to collect post-closing fees would be at the mercy of the borrower's will. Specifically, Citibank states that if the obligation to pay Sales Income post-closing fee could arise with the refinancing of the Citibank Towers loans, then it is unreasonable to say that the obligation to pay also expires on the same day that it arises. The court is not persuaded. Both loan agreements in question provided Citibank With "a right of first offer with respect to any proposed refinancing of the Properties." See Exhibit II, Docket No.1 at p. 41; Exhibit III, Docket No. 1 at p. 34. Here, the undisputed evidence is that Lincoln gave Citibank in mid 1997 the opportunity to refinance the Citibank Towers loans. See Docket No. 94 at ¶ 19. At that time, Citibank could have exercised the right to demand the Sales Income post-closing fee. This is because Section 11.2 of the loan agreements in question granted Citibank the right to demand payment of Sales Income post-closing fee even before any sale or refinancing of the Citibank Towers. See Exhibit II, Docket No.1 at pp. 46-47; Exhibit III, Docket No. 1 at pp. 38-39. Nonetheless, after the parties were not able to reach an agreement on the refinancing terms, Citibank did not exercise such right. Thus, Citibank allowed its right to expire. Finally, Citibank argues that under the terms of the loan agreements, it could choose which event (sale or refinancing) triggered the obligation to pay post-closing fees. The court disagrees. Section 11.1's plain language provides that the bank's right to receive post-closing fees survives repayment of the loans until the Building Complex is sold or refinanced. See Exhibit II, Docket No.1 at pp. 41-42; Exhibit III, Docket No. 1 at p. 34. This section does not state that Citibank has a right to choose which event triggers the obligation to pay post-closing fees. The occurrence of either event is sufficient to end Citibank's right to collect post-closing fees. In light of the above, the court finds that Citibank is not entitled to collect any post-closing fees with respect to the Citibank Towers loans because its right to collect such fees expired under the clear terms of the loan agreements. Because the terms *238 of the loan agreements are clear, the court need not consider extrinsic evidence or dwell on the "alleged" intent of the parties. Fernandez-Fernandez, 942 F.Supp. at 94. See also Borschow, 96 F.3d at 15-16. Likewise, having found that Citibank's right to collect post-closing fees expired, the court will not decide whether Citibank released the Portela Defendants from any claims arising out of the Citibank Towers loans. IV. Conclusion For the foregoing reasons, the Portela Defendants' motion for partial summary judgment (Docket No. 92) is hereby GRANTED. SO ORDERED. NOTES [1] The term refers collectively to Rafael Portela Rodriguez, Maritza Botella Barcelo and the Conjugal partnership composed by both of them, Allied Management Group, Inc., Allied Investment, Inc., and the Two Towers Corp. These Defendants guaranteed the loans in question.

In The Court of Appeals Seventh District of Texas at Amarillo No. 07-13-00347-CR JUAN LUIS VALENZUELA JIMENEZ, APPELLANT V. THE STATE OF TEXAS, APPELLEE On Appeal from the 31st District Court Hemphill County, Texas Trial Court No. 2902, Honorable Steven Ray Emmert, Presiding July 17, 2014 MEMORANDUM OPINION Before QUINN, C.J., and HANCOCK and PIRTLE, JJ. Appellant was indicted and convicted of fraudulent use or possession of identifying information and sentenced to confinement for one year in a State Jail Facility (SJF) and a fine of $5,000.1 Appellant appeals his conviction, contending that the trial court committed reversible error when it admitted appellant’s statement in evidence. We will affirm. 1 See TEX. PENAL CODE ANN. § 32.51(b)(1), (c) (West Supp. 2013).  Factual and Procedural Background Appellant obtained employment at King Well Service in Canadian, Texas, under the name of Victor Maitland. Later, the Texas Workforce Commission contacted the true Victor Maitland to advise him that their records indicated that, while he was drawing unemployment compensation, he was actually employed by King Well Service. After Maitland contacted King Well Service and verified that it had an employee by the name of Victor Maitland, Maitland called the Hemphill County Sheriff’s Department to advise that he thought he was a victim of identification theft. After receiving Maitland’s phone call, Deputy Jerri-Lynn Ortega contacted King Well Service and was provided copies of a social security card and permanent resident card that appellant had given King Well Service when he was hired. The name on the card was Victor Maitland. Jerri-Lynn Ortega was informed that appellant was not entirely fluent in English. Based upon this information, prior to going to appellant’s home to question him, Jerri-Lynn Ortega sought the assistance of Deputy Oscar Ortega, who is a Spanish speaker. Upon arriving at appellant’s residence, Jerri-Lynn Ortega ask to see appellant’s identification and was shown a driver’s license issued by the State of Chihuahua, Mexico, that identified appellant as Juan Luis Valenzuela Jimenez. Appellant told the deputies that he was not employed. Jerri-Lynn Ortega then attempted to show appellant the social security card and permanent resident card obtained from King Well Service and ask him about his employment at King Well Service; however, appellant appeared not to understand the question. When asked about employment in Spanish 2 by Oscar Ortega, appellant admitted that he was employed by King Well Service and showed them the original of the social security card and permanent resident card under the name of Victor Maitland. Further, appellant admitted to purchasing the identification documents at issue for $1,000 in Amarillo. Per the deputies’ request, appellant then accompanied the two deputies back to the sheriff’s office to provide a statement. It was while at the sheriff’s office that the statement, which is the subject of appellant’s issue, was obtained. Appellant was indicted for the subject offense and, prior to trial, appellant filed a motion in limine as to “Evidence of Defendant’s Statement.” Even though the pending motion was styled as a motion in limine, the record is clear that the attorneys for each of the parties and the trial judge treated the motion as a motion to suppress the statement. The trial court conducted a hearing on the motion and denied the motion. Thereafter, the case went to trial and resulted in the conviction and sentence that appellant now appeals. Standard of Review We review a trial court’s denial of a motion to suppress under a bifurcated standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). We review the trial court’s factual findings for an abuse of discretion but review the trial court’s application of the law to the facts de novo. Id. In reviewing the trial court’s decision, we do not engage in our own factual review; rather, the trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). Therefore, we give almost total deference to the trial court’s rulings on (1) questions of 3 historical fact, especially when based on an evaluation of credibility and demeanor, and (2) application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor. See Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). Appellate courts review de novo “mixed questions of law and fact” that do not depend upon credibility and demeanor. Id. If the trial court’s decision is correct under any theory of law applicable to the case, it will be sustained. Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003) (en banc). Additionally, the legal question whether the totality of circumstances justified the officer’s actions is reviewed de novo. Hudson v. State, 247 S.W.3d 780, 784 (Tex. App.—Amarillo 2008, no pet.). Analysis In a single issue, appellant contends that the trial court erred in admitting appellant’s written statement into evidence. However, before we may take up the direct question of that statement’s admissibility, we must address the State’s question of whether this issue has been properly preserved for appeal. It is a settled principle of Texas jurisprudence that, to be allowed to complain on appeal about the action of a trial court in admitting evidence, there must be a timely request, complaint, or motion that advises the trial court what action you wish it to take. See TEX. R. APP. P. 33.1(a)(1). Additionally, it is also well settled that a motion in limine does not preserve for appeal the erroneous admission of evidence. See Roberts v. State, 220 S.W.3d 521, 533 (Tex. Crim. App. 2007); Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003). 4  The motion filed by appellant is styled a motion in limine. However, a review of the record reveals that all parties and the trial court conducted the pre-trial hearing as a hearing on a motion to suppress appellant’s statement. Specifically, at the beginning of the hearing, we see an exchange between the trial court and the State’s attorney wherein the State’s attorney agreed that the court would treat appellant’s motion as a motion to suppress. Accordingly, the State proceeded to produce evidence to show that the statement should not be suppressed. From this record, it is clear that the document styled as a motion in limine was treated as a motion to suppress. We will analyze the case accordingly. See Thomas v. State, 408 S.W.3d 877, 885–86 (Tex. Crim. App. 2013) (holding that the nature of a “no objection” statement is contextually dependent). The State’s contention is overruled. Analysis Appellant’s complaint is centered on the proposition that, during the taking of his written statement, he was in custody. This then leads to appellant’s conclusion that his Fifth Amendment privilege against self-incrimination was violated. See U.S. CONST. amend. V. However, the issue regarding whether the procedure followed by law enforcement was proper in this case cannot be determined by simply alleging that appellant did not understand the statement he gave because of language difficulties. Rather, we must first address the issue of whether appellant was in custody. See Herrera v. State, 241 S.W.3d 520, 525–26 (Tex. Crim. App. 2007). Custodial interrogation has been defined as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived 5 of his freedom of action in any significant way.” See id. at 525 (quoting Miranda v. Arizona, 384 U.S. 384, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)). We apply a reasonable person standard to a determination of whether a person is in custody; that is to say, would a reasonable person believe that his freedom of movement was restrained to the degree associated with a formal arrest? See id. (citing Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996)). This custody inquiry includes an examination of all objective circumstances surrounding the questioning. See id. (citing Stansbury v. California, 511 U.S. 318, 322, 114 S. Ct. 1526, 128 L. Ed. 2d 293 (1994)). When reviewing a trial court’s custody determination, we are reviewing a mixed question of law and fact. Id. at 526. We afford almost total deference to a court’s custody determination that is dependent upon the historical facts that turn on the issues of credibility and demeanor. Id. at 526-27. The facts, as demonstrated in the record, are as follows: 1) Appellant was initially questioned at his home after he was read his statutory warnings. 2) Appellant was never handcuffed nor otherwise told he was under arrest at his home. 3) The deputies testified that they asked appellant if he would voluntarily go with them to the Sheriff’s office and give a formal statement. 4) Appellant was not handcuffed or otherwise restrained on the drive to the Sheriff’s office. Appellant was seated in the front seat of the Sheriff’s car next to one of the deputies. 5) At the Sheriff’s office, appellant again had his statutory warnings given to him. 6) Appellant was never handcuffed or otherwise restrained during the taking of his written statement. 6  7) At the conclusion of giving his written statement, appellant was not arrested or further detained; instead, he was taken home. The trial court was not requested to file findings of fact and conclusions of law, and, accordingly, there are none in the record. We are directed to assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record. Id. at 527 (citing State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000) (en banc)). Based upon our review of the record, we find that when the reasonable person standard is applied to the facts of appellant’s case, appellant was not in custody at the time he gave his written statement. See id. at 525 (citing Dowthitt, 931 S.W.2d at 254.) Inasmuch as appellant was not in custody at the time his statement was taken, the trial court did not err in denying appellant’s motion and admitting the statement into evidence before the jury. Appellant’s issue to the contrary is overruled. Conclusion Having overruled appellant’s single issue, we affirm the judgment of the trial court. Mackey K. Hancock Justice Do not publish. 7 

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 7 STATE OF NEW MEXICO, 8 Plaintiff-Appellee, 9 v. NO. 30,760 10 EDWARD DAVIS, 11 Defendant-Appellant. 12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 13 Neil C. Candelaria, District Judge 14 Gary K. King, Attorney General 15 Santa Fe, NM 16 for Appellee 17 Law Office of Jamison Barkley, LLC 18 Jamison Barkley 19 Santa Fe, NM 20 for Appellant 21 MEMORANDUM OPINION 22 VIGIL, Judge. 1 Defendant appeals his conviction for criminal sexual contact of a minor. In our 2 notice, we proposed to affirm the conviction. Defendant has timely responded to our 3 proposal, along with a motion to amend the docketing statement to include additional 2  1 issues. We deny the motion to amend the docketing statement as it does not comply 2 with State v. Moore, 109 N.M. 119, 128-29, 782 P.2d 91, 100-01 (Ct. App. 1989), 3 overruled on other grounds by State v. Salgado, 112 N.M. 537, 817 P.2d 730 (Ct. 4 App. 1991). We have considered Defendant’s arguments against our proposed 5 affirmance and not being persuaded, we affirm. 6 In our notice, we proposed to conclude that the district court did not err in 7 excluding the testimony of Detective Chadwell, who had investigated a previous 8 allegation of criminal sexual contact that the victim had allegedly made against a 9 different person. We proposed to conclude that the district court did not abuse its 10 discretion pursuant to State v. Johnson, 1997-NMSC-036, 123 N.M. 640, 944 P.2d 11 869. In response, Defendant argues that the exclusion of Detective Chadwell’s 12 testimony violated his right to confront the witnesses against him. Defendant must 13 show that the evidence was relevant or necessary to his defense before his 14 confrontation rights are at issue. Cf. State v. Stephen F., 2007-NMCA-025, ¶ 18, 141 15 N.M. 199, 152 P.3d 842, aff’d 2008-NMSC-037, 144 N.M. 360, 188 P.3d 84. As we 16 pointed out in our calendar notice, Defendant failed to make any showing regarding 17 how the evidence was relevant or necessary to his defense. 18 Defendant appears to be arguing that he sought to have evidence of prior 19 allegations admitted, which is different from evidence of sexual history. The alleged 20 allegations, however, relate to sexual conduct and are included in the ambit of the 3  1 Rape Shield Law. See State v. Casillas, 2009-NMCA-034, ¶¶ 25, 26, 145 N.M. 783, 2 205 P.3d 830. Defendant relies on Manlove v. Sullivan, 108 N.M. 471, 475 n.2, 775 3 P.2d 237, 241 n.2 (1989), to make the distinction. Manlove was decided years before 4 the Supreme Court set out the current test in Johnson for evaluating when such 5 evidence is admissible. Nevertheless, the distinction made in Manlove between sexual 6 conduct and evidence of fabrication is found in Johnson. 7 It simply appears here that Defendant was unable to make a clear enough 8 showing that he sought the evidence solely to attack the veracity of the victim’s 9 allegations. The evidence to be presented here is nothing like that in Manlove. It was 10 the testimony of a police detective who was trying through interview of the victim to 11 verify an allegation made by her mother of sexual contact by another person. The 12 victim never verified the allegation. Defendant has not shown how that evidence is 13 relevant or necessary to his defense. 14 Defendant argues that even assuming that Johnson applies, the first factor does 15 not weigh against him. The first factor requires a clear showing that the complainant 16 committed the prior acts. 1997-NMSC-036, ¶ 27. In its arguments to the district 17 court, the State pointed out that it was not the victim here, but her mother who made 18 the prior allegations. [RP 191] In fact, the victim never disclosed any prior sexual 19 activity. Allegations made by the victim’s mother were referred to CYFD, but the 20 victim herself never reported any sexual activity. Defendant argues that saying that 4  1 the victim did not make the prior allegations is impractical and unworkable. He 2 argues that children often report to a parent who then reports to authorities. But, in 3 those cases, the authorities’ follow-up corroborates a child’s report to its parent. Here, 4 the victim did not follow up her mother’s allegation with a report of her own 5 regarding sexual activity. Thus, there is no clear showing that the victim committed 6 the prior acts. 7 We continue to hold that the district court did not abuse its discretion in 8 applying the Johnson factors and excluding the evidence. 9 The two issues regarding instructing the jury on the meaning of “breast” have 10 not been addressed in the memorandum in response to the calendar notice. Therefore, 11 we deem them to have been abandoned. State v. Salenas, 112 N.M. 268, 269, 814 12 P.2d 136, 137 (Ct. App. 1991). 13 For the reasons stated herein and in the notice of proposed disposition, we 14 affirm. 15 IT IS SO ORDERED. 16 _______________________________ 17 MICHAEL E. VIGIL, Judge 18 WE CONCUR: 19 _________________________________ 5 1 CELIA FOY CASTILLO, Chief Judge 2 _________________________________ 3 JAMES J. WECHSLER, Judge 6 

IN THE SUPERIOR C()URT OF THE STATE OF DELAWARE STATE OF DELAWARE, I.D. No.: 1605014261 NAKEEM BAILEY, Defendant. MEMORANDUM OPINION AND ORDER Submitted: December 22, 2016 Decided: March 2, 2017 Corrected: March 10, 2017 Upon Consz`demtion ofDefendant’s Motion to Tmnsfer Charges to Family Court. DENIED. Mark A. Denney, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware. Att@rneyfor the State. Patrick J. Collins, Esquire, Patrick Collins & Associates, LLC, Wilmington, Delaware. Attorneyfor the Defendam. MEDINILLA, J. INTRODUCTION Defendant Nakeem Bailey Was a fifteen-year-old adjudicated delinquent youth When he Was arrested on violent felony charges in this Court. His lQ of 72 places him in the 3rd percentile of his same-aged peers. lf convicted as an adult, he Will spend_at a minimum_the next half of his life (i.e., fifteen years) in prison on just the minimum mandatory portion of his sentence He filed this Motion to Transfer Charges to Family Court arguing that transfer of his companion charges is Warranted pursuant to 10 Del. C. § 1011. A “reverse amenability” hearing Was held on December 22, 2016, Where the Court heard evidence and oral arguments on the Motion. After considering the submission of the parties, the parties’ oral arguments at the hearing, and the record in this case, the Court finds that the § 1011(b) factors do not Weigh in favor of transferring Defendant’s companion charges to Family Court. Therefore, Defendant’s Motion to Transfer Charges to Family Court is DENIED. FACTUAL AND PROCEDURAL HISTORY Sadly, Defendant is yet another poster child for Why the State created the Department of Services for Children, Youth and Their Families (“DSCYF”). Even more unfortunate is that this Defendant has required the State’s involvement from all of their divisions; Division of Family Services (“DFS”) for child abuse, dependency, and neglect; Division of Prevention and Behavioral Health Services (“PBH”) for his multiple mental health diagnoses; and Youth Rehabilitative Services (“YRS”) for his most recent introduction into the juvenile justice system at age fourteen. Defendant is one of twenty-eight defendants in a 109-Count indictment With trial scheduled to begin at the end of 2017.l Defendant has been detained since he Was fifteen years old and Will have celebrated his sixteenth and seventeenth birthdays awaiting trial. The charges against Defendant include Gang Participation, three counts of Possession of a Firearm During Commission of a Felony (“PFDCF”), Robbery First Degree, Assault First Degree, two counts of Possession of a Firearm by a Person Prohibited (“PFBPP”), Conspiracy Second Degree, and Carrying a Concealed Deadly Weapon. Exclusive Jurisdiction of Firearm Charges The General Assembly has spoken With respect to how it defines criminal behaviors and exercised its authority to classify child offenders “based on their age for purpose of selecting the appropriate court for adjudication.”2 The classification “must be founded on differences reasonably related to the purposes of the statute in l Defendant Was arrested in May 2016, arraigned in August 2016, re-indicted in September 2016, re-arraigned in October 2016. A reverse amenability hearing Was held on December 22, 2016. 2 State v. Anderson, 697 A.2d 379, 382 (Del. 1997) (quoting Hughes v. State, 653 A.2d 241, 248 (Del. 1994)). ”3 Delaware law is clear that, by enacting 11 Del. which the classification is made. C. § 1447A(f), the General Assenibly intended that individuals over the age of 15 years charged with PFDCF to be tried as adults and no reverse amenability process is available.4 Twenty years ago, State v. Anderson addressed the constitutional issues raised when certain juveniles are placed within the exclusive jurisdiction of this Court charged with [specified firearm offenses].5 Anderson held that a juvenile was not entitled to a reverse amenability hearing when charged with PFDCF and must be tried as an adult without judicial consideration of the factors enumerated under 10 Del. C. § 1011(b). Although some jurisdictions have recently considered unconstitutional certain “autornatic transfer” statutes that prevent amenability review for a juvenile offender,6 Defendant does not challenge the constitutionality of our current laws for juveniles charged with firearm offenses. As such and as a preliminary matter, because the State has charged Defendant with several counts of PFDCF, those 3 Ia'. (quoting State v. Ayers, 260 A.2d 162, 171 (Del. 1969)). 4 11 Del. C. § 1447A(f) (2013 & Supp. 2016). Cf Anderson, 697 A.2d at 383 (discussing older version of § 1447A(f), which used 16 years of age instead of 15). 5 See generally Ana'erson, 697 A.2d 379. 6 See, e.g., State v. Aalz'm, -~-N.E.Bd----, 2016 WL 7449237 (Ohio Dec. 22, 2016) (holding Ohio’s mandatory transfer statute for juveniles violates due process under Ohio Constitution). 4 firearm charges--by operation of statute-automatically remain in this Court.7 Since Defendant was over fifteen at the time he allegedly committed these offenses, he will not be spared Superior Court proceedings regardless of his arguments for transfer of the companion charges outlined below.8 Therefore, Defendant’s Motion and this ruling focuses solely on the remaining “companion” charges Defendant’s Alleged Conduct The facts that give rise to these charges reveal that at age 15, Defendant allegedly held up a victim at gunpoint while the victim was rolling a blunt cigarette The victim relinquished $9 and a pack of cigarillos. According to the victim, Defendant had started to back away and was placing the handgun into his pants pocket when the victim thought he “could take him.” When the victim attempted to grab him, Defendant fired the gun. Defendant was identified by the victim and also found discarding the firearm on the same day. Subsequently, during the course of this investigation, the alleged relationships between Defendant and some co-defendants gave rise to the gang participation charges. lf convicted, Defendant faces a minimum mandatory sentence of fifteen years. His first fifteen years were no better. 7See 10 Del. C. § 1011 (2013 & Supp.2016);1lDel.C. §1447A. 8 See generally Anderson, 697 A.2d 379 (answering certified questions; holding weapons charges for defendants age 16 and older are not subject to transfer to F amin Court, while reverse amenability hearing is permissible for charges properly joined with weapons charges). 5 Defendant’s 15-Year History of Abuse, Dependency, Neglect, and Mental Health At the reverse amenability hearing, Defendant presented expert evidence in support of his Motion that provided a background for the pending charges The State did not introduce any evidence to dispute or contradict the opinions of Defendant’s experts. This evidence included a “Confidential Report of Psychological Evaluation” from a licensed psychologist, Dr. Robin Belcher- Timme, Psy.D, and an “Amenability Report” prepared by Taunya Batista, M.A., a Sentencing Advocate/l\/litigation Specialist.9 Their reports and testimony painted a troubling picture of Defendant’s life.10 The record reflects that Defendant’s numerous traumatic life events, beginning at birth, were far from abnormal in the arc of his short life leading up to the charges in this case. Defendant’s mental health, child welfare, and substance abuse histories include: 9 The evidence from their curricula vitae shows that Ms. Bautista holds a Masters in Criminal Justice and Dr. Timme has a doctorate in Psychology, as well as three Master of Arts degrees in Criminal Justice, Clinical Psychology, and Secondary English Education. 10 Defendant was born prematurely on July 6, 2000. His mother was a child-parent, a sixteen- year-old freshman at A.l. DuPont High School, with substance abuse issues. His father “wanted to be a drug dealer” and to “raise a criminal” he continuously exposed his son to criminal behavior; arrested for trafficking offenses in the same month Defendant was born. 6 ¢ Mental health history (from his records with the Division of Prevention and Behavioral Health Services (“PBH”)): Defendant was diagnosed with ADHD, Oppositional Defiant Disorder (“ODD”), and Mood Disorder. ¢ Child Welfare history (from the Division of Family Services)_Evidence of severe domestic violence, child abuse, dependency, and neglect that dates back to when Defendant, as early as one month old, was neglected (e.g., his mother left him in the care of a ten-year-old). At one month old, the Family Court awarded guardianship of Defendant to his maternal grandmother. l\/Ioreover, both biological parents had a significant history of substance abuse. Defendant routinely pled with his mother not to force visits with his father. These requests fell on deaf ears and Defendant was frequently a victim of his father’s substance-induced rages, including physical abuse. He also witnessed acts of domestic violence by his father against women in his father’s house. Defendant was also beaten by other male figures in his life. 0 Substance abuse history-Defendant’s substance abuse started in eighth grade, around the time that his uncle was murdered. His substance abuse history reveals that he used marijuana, Xanax, Percocet, and Promethazine. lt is within this disturbing context that the Court now turns to weigh the factors under 10 Del. C. § 1011(b) and the arguments made for and against transfer of the companion charges to Family Court. STANDARD OF REVIEW The reverse amenability process has been determined a matter of constitutional entitlement with time-sensitive provisions intended to identify those juveniles who may still be able to return to Family Court.ll When a juvenile files a motion to transfer all or some of the charges leveled against him, the Court must hold a reverse amenability hearing and weigh the four factors set forth in 10 Del. C. § ioii(b).12 The Court “may” consider evidence of: (1) “[t]he nature of the present offense and the extent and nature of the defendant’s prior record, if any;” (2) “[t]he nature of past treatment and rehabilitative efforts and the nature of the defendant’s response thereto, if any;” (3) “[w]hether the interests of society and the defendant would be best served by trial in the Family Court or in the Superior Court;” and (4) any “other factors which, in the judgment of the Court are deemed relevant.”]3 Before the Court weighs these factors, however, “the Court must preliminarily determine whether the State has made out a prima facie case against the juvenile, meaning whether there is a fair likelihood that [Defendant] will be ll See Haghes v. State, 653 A.2d 241, 249 (Del. 1994) (quoting Marine II, 624 A.2d 1181, 1184 (Del. 1993); Marine v. Stale, 607 A.2d 1185, 1209 (Del. 1992) [hereinafter Marine I]). 12 See, e.g., State v. Harper, 2014 WL 1303012, at *5-7 (Del. Super. Mar. 31, 2014). 13 § ioii(b). convicted of the crimes charged.”]4 There is a fair likelihood that the defendant will be convicted if, after reviewing the totality of the evidence presented, it appears that, if the defense does not sufficiently rebut the State’s evidence, “the likelihood of a conviction is real. . . .”15 Furthermore, “[a] real probability must exist that a reasonable jury could convict on the totality of the evidence assuming that the evidence adduced at the reverse amenability hearing stands unrebutted by the defendant at trial.”16 DISCUSSI()N F air Likelihood of Conviction As a threshold issue, the Court finds that there is a “fair likelihood of conviction” in this case. On the firearm charges alone, there is a fair likelihood of conviction. The facts are relatively straightforward Defendant allegedly held up a victim at gunpoint. The victim reported that Defendant put the handgun into his pants pocket when the victim thought he “could take [Defendant].” When the victim attempted to grab him, Defendant fired the gun. Defendant was later identified and found discarding the firearm on the same day. Based on the 14 Harper, 2014 WL 1303012, at *5 (citing Marirze v. State, 624 A.2d 1181, 1185 (Del. 1993) [hereinafter Marine II]). ‘5 smre v. Mayhall, 659 A.zd 790, 792 (Dei. super 1995). lG]d foregoing, this Court finds that the State has made out a prima facie case against Defendant. Weighing § 1011 (b) ’s F our Factors I. Section 1011(b)’s Catchall Provision: Anv Factors Deemed Relevant Defendant is both a youth in need of rehabilitation and is also an adult offender. As the Supreme Court noted in Ayers: “An individual between the ages of 1[5] and 18 is as capable of violent action as is an older individual.”17 He, therefore, remains an “adult” offender for the PFDCF charges and will be expected to answer to those charges. Notwithstanding this mandate, the analysis available under § 1101(b) asks the Court to weigh certain factors to determine if this 16- year-old Defendant may still be amenable to the State’s rehabilitative efforts. In other words, does it make sense for both courts to be involved in the disposition of the case, where a youth can have access to rehabilitative services but also face the consequences of the adult charges‘? The Court begins its analysis of § 1011(b)’s four factors by flipping the normal analysis on its head. Traditionally this final, or “catchall,” factor is addressed last under § 1011(b). Under this factor, the Court may consider any factors “which, in the judgment of the Court are deemed relevant.” The Court purposely starts with this final factor because it was impliedly the State’s primary 17 stare v. Ayers, 260 A.zd 162, 171 (Dei. 1969). 10 and only argument against transfer, and because Defendant presents a unique argument in favor of transfer that also falls under this factor. Further complicating this analysis is the testimony presented through YRS representative, Jennifer Skinner, related to the YRS policies/practices, and the practical effect they have on a youth if the Court decides to transfer the case back to Family Court. Defendant makes an excellent argument that this catchall factor weighs in his favor where the delay uniquely associated with this case is highly relevant to the Court’s analysis. Defendant emphasizes that this is a 28-defendant gang participation case and trial is not scheduled until the end of this year. Assuming the best case scenario (i.e., no continuances or other delays in this case), Defendant has been detained since he was fifteen in May 2016 and he will be nearly halfway to eighteen when he gets to trial. Defendant suggests that if some of his charges are transferred back to Family Court, he is still young enough to receive up to five years of Family Court supervision, and at least two and a half years of rehabilitative services, and then return to this Court to face his adult firearm charges The Court agrees that Defendant’s age and rehabilitation opportunities are highly relevant. Although months or years might not be an unusual timeframe for a case to get to trial, for purposes of amenability, it is highly relevant, especially, for this juvenile Defendant. By age fourteen, he was on the radar of all three ll divisions charged with addressing his multi-faceted and complex issues For the eighteen months he remains incarcerated through YRS, he goes without “services,” as those terms are defined by DSCYF from the sister divisions in DFS, PBH, and YRS.18 The argument successfully makes the point that services and time are still available to him at YRS if sent back to Family Court. Unfortunately, YRS will not service him while he carries adult charges This result places this youth between the proverbial rock and hard place, and is at the core of the State’s position against a transfer. The State argues, as it often does, that because it has charged Defendant with firearm offenses that invoke this Court’s exclusive jurisdiction, the companion charges are inextricably intertwined with the firearm charges for which transfer is unavailable Accordingly, the State essentially argues that, notwithstanding the other § 101 l(b) factors, this factor is determinative and strongly suggests that this Court should retain jurisdiction over the companion charges The problem with the State’s argument is that it places undue emphasis on one catchall provision among the other § 10ll(b) factors The State’s 18 This is not to say that he is not receiving some support at the detention center. However, it is misguided to suggest that he is receiving therapy while detained Except for Cognitive Behavioral Therapy (“CBT”), this “therapy” is not addressing his mental health diagnoses, his substance abuse problems, or child welfare needs. Educationally, he may be getting schooling but it does not appear that he has access_nor has he been assessed for_special education services despite his obvious cognitive and developmental challenges 12 contention_that the Court’s exclusive jurisdiction over the PFDCF charges is dispositive as to the companion charges_~was addressed in State v. Anclerson where the Supreme Court expressly rejected the State’s position that a juvenile was not entitled to a reverse amenability hearing (for the remaining charges) because it had charged him with these enumerated firearm offenses.]9 Arza’ersorz recognized the importance of the reverse amenability process as “providing a judicial check on prosecutorial overcharging_a function with implications of important equal protection and due process guarantees in the prosecution of certain offenses.”20 Moreover, from a statutory construction perspective, it would ring inconsistent for the General Assembly to enumerate certain explicit statutory factors in § 1011(b), but permit the State’s charging decision to override these express factors.Z] Were the State’s charging decision the sole determinative factor at the reverse amenability stage, the result would necessarily be that, whenever the State charged a juvenile with PFDCF, this charging decision would force the companion charges to remain in this Court no matter how much the other statutory factors leaned towards transfer. lf the legislature intended this result when it 19 See State v. Ana'erson, 697 A.2d 379, 384 (Del. 1997) (“The State’s argument does not square with the plain language of [§ 1011].”). 211 1a (quoting Hughes, 653 A.2d at 245; Marzne 1, 607 A.zd ar 1209-12). 21 cf la see also Rubick v. sea lmzmmem corp., 766 A.zd 15, is (Dei. 2000) (“The ruies 6f statutory construction are well settled. The goal, in all cases, is ‘to ascertain and give effect to the intent of the legislature.’ If the statute is unambiguous there is no room for interpretation, and the plain meaning of the words controls.”). 13 placed PFDCF in the exclusive jurisdiction of this Court, then there would be no reason for this Court to review the statutory factors expressly set out under § 1011.22 An automatic transfer would occur. To make judicial review a pro forma exercise not only runs counter to the rulings in Marine 1 and II, Hnghes, and Anderson, it is flawed based on recent United States Supreme Court decisions that have struck down automatic provisions without judicial oversight for juvenile offenders as unconstitutional.23 Nonetheless, the evidence presented through YRS highlights the flaws in our current system and our reverse amenability considerations The State agency, or DSCYF through YRS, presents a curious stance on how the agency will process the delivery of juvenile justice services to Defendant even if this Court determines that he is amenable to the Family Court. Although not statutorily mandated, YRS will not provide services if Defendant has pending adult charges in this Court. The practical reality, as this Court has determined in prior reverse amenability decisions, is that since YRS will not provide services while a juvenile has pending adult charges, severance of the charges would only 22 cf Rubick, 766 A.zd ar is. 23 See, e.g., Miller v. Alabama, 132 S.Ct. 2455 (2012) (mandatory life imprisonment without parole statute for juveniles violates Eight Amendment; fact-finder must have opportunity to consider mitigating circumstances before imposing such penalty). See also State v. Aalim,--- N.E.3d----, 2016 WL 7449237 (Ghio Dec. 22, 2016) (holding Ohio’s mandatory transfer statute for juveniles violates due process under Ohio Constitution). 14 serve to delay services because the Defendant is forced to remain at the detention center pending disposition of his Superior Court charges24 One would suggest that the logical solution would be to resolve the adult charges first. However, Ms. Skinner testified that if a youth is convicted as an adult offender, he is no longer considered a youth, and cannot receive services through YRS. Moreover, it will not provide services to a youth to age twenty-one even if the Family Court extended its jurisdiction accordingly.25 The YRS policies raise two concerns YRS has custody of a juvenile and is responsible with providing services to youth until age nineteen yet will not do so while the youth has pending charges as an adult offender. The testimony from YRS was that the State’s charging decision alone makes him non-amenable This is regardless of Defendant’s ability to respond to rehabilitation or the likelihood that the State will obtain an adult conviction. Second, YRS remains mandated to only provide services to a youth to age nineteen, regardless of whether the Family Court extends its jurisdiction to age twenty-one. The result appears to be a de facto deprivation of services to a youth who may be amenable to the Family Court. 24 Ms. Skinner cited staff security reasons as reasons youth with pending services should not be “mixed” with adjudicated youth. Since they face adult charges, they are likely not going to be incentivized to behave while in youth facilities 25 see 10 Del. C. §§ 928-29 (2013 & supp. 2016) routinng Famiiy courts ability to extend jurisdiction over certain juveniles up to age 21). 15 This catch-22 effect of the YRS administrative policies hamstrings this Court’s analysis Even if a determination is made that both courts should remain involved in the disposition of charges against a juvenile offender because he is both amenable to services as he transitions into adulthood, and shall remain answerable to the adult offenses, the fact that the agency charged with servicing him will not do so is a significant factor. When cross-examined, l\/ls. Skinner testified that she was unsure how these policies came into being and confirmed that they did not appear to be statutorily mandated Where YRS will prohibit access to services post-adjudication if a juvenile has pending adult charges, the State has routinely dovetailed this policy in support of its argument against a transfer. lt follows that traditional arguments of severance and joinder under Rules 8 and 14 have prevailed to persuade the Court against transfer as both judicially economic and to avoid the delay of services as a “relevant” factor. The policies of YRS have made it easy for the State to simply state that-~due to its charging decision-transfer is unavailable, unnecessary, or meaningless This is accurate. Unfortunately, it also runs counter to the intent of 10 Del. C. § 1011, making the reverse amenability process for a juvenile facing adult offenses an exercise in futility for the youth and a rubber-stamping waste of judicial resources for the Court. 16 The time-sensitive nature of reverse amenability requires a defendant file the motion for transfer within 30 days of arraignment, and for this Court to hold a hearing within 30 days of said filing.26 The sense of urgency exists for juveniles, unlike for adults, because the proverbial window is closing each day for the rehabilitative services offered only through YRS and Family Court. YRS policies, however, do not appear to be in sync with the same sense of urgency intended by General Assembly. The policies vitiate the spirit of § 1011 and impede the time- sensitive nature of the reverse amenability process As to the “catchall” provision, this Court reluctantly must accept that a transfer to Family Court would do nothing but delay Defendant’s access to services while he remains detained awaiting disposition of his adult charges The only efficient choice is to keep the charges together so that Defendant is working solely with one Court. This factor weighs against a transfer. II. Section 1011(b) Factor One: Nature of Present Offense and Extent and Nature of Defendant’s Prior Record Albeit somewhat a pro forma exercise for the reasons above stated, § 1011(b) directs the Court to look at the present offense and then the extent and nature of Defendant’s prior record. As to this factor, the offenses are manifestly serious: he is facing violent felonies that carry lengthy minimum mandatory prison 116 10 Del. C. § 1011(6). 17 sentences This clearly weighs against a transfer. However, the second prong of the first § 1011(b) factor weighs in favor of transfer. While Defendant has a long history of child abuse and behavioral and mental health through DFS and PBH, his juvenile delinquency history through YRS is minimal. His first arrest came at age thirteen for Driving Without a License for riding his mother’s mini bike. This charge was nolle prossed. Notably, the State presented evidence from Ms. Skinner who testified that, because his history is minimal, but for the PFDCF charges, he would be amenable to the services of YRS. In June 2015, Defendant became active for the first time with YRS at age fourteen when charged with serious charges, including Robbery First Degree. The charges stayed in Family Court and were nolle prossed, except for an adjudication of delinquency for Conspiracy Third Degree. He was ordered to Wraparound Delaware where the response was good. He was successfully discharged from this program on March 31, 2016 and completed his community service with a construction company. He was compliant when placed on pre-trial supervision and was otherwise successful during his probationary period. Defendant’s criminal record consists of two incidents, albeit serious, at the age of fourteen and fifteen respectively. ln other contexts, the United States Supreme Court has recognized the “mitigating qualities of youth,” which includes 18 a judicial and scientific recognition of the juvenile’s proclivity to act impulsively and irresponsibly due to innumerable intrinsic and extrinsic factors27 Analogously, and given Defendant’s age in this case, this factor splits in favor of a transfer. While the charges are serious, the nature and extent of his prior record occurred within a one-year period when Defendant was between fourteen and fifteen-years old and he complied with the rehabilitation efforts favorably. All evidence suggests he is amenable to transfer but the YRS policies would result in his continued detention pending disposition of his adult firearm charges III. Section 1011(b) Factor Two: Nature of Past Treatment and Rehabilitative Efforts and Defendant’s Response Thereto The next § 1011(b) factor assesses “[t]he nature of past treatment and rehabilitative efforts and the nature of the defendant’s response thereto, if any.” This Court finds that this factor weighs in favor of transfer. 27 Miller v. Alabama, 132 S.Ct. 2455, 2467 (2012) (quoting Johnson v. Texas, 509 U.S. 350, 367 (1993)). Roper v. Simmons and its progeny reflect the greater attention that is now placed on the peculiarities inherent in juvenile conduct See Roper v. Simmons, 543 U.S. 551 (2005). See also Montgomery v. Louisiana, 136 S.Ct. 718 (2016); Miller, 132 S.Ct. 2455; Graham v. Florida, 560 U.S. 48 (2010). This Eight Amendment jurisprudence recognizes that juveniles possess a “lack of maturity and . . . underdeveloped sense of responsibility” that leads to reckless, impulsive, and heedless risk-taking. Roper, 543 U.S. at 569 (quoting Johnson, 509 U.S. at 367). They “are more vulnerable . . . to negative influences and outside pressures,” including from their family and peers Id. (citing Eddings v. Oklahoma, 455 U.S. 104, 115 (1982)). Juveniles have limited “control . . . over their own environment” and lack the ability to extricate themselves from horrific, crime-producing settings Id. (citing Laurence Steinberg & Elizabeth S. Scott, Less Guilly by Reason of Adolescence: Developmenial Immatnrily, Diminished Responsibility, and the Juvenile Death Penally, 58 AM. PSYCHOLOGIST 1009, 1014 (2003)). And because a child’s character is not as “well formed” as an adult’s, his traits are “less fixed” and his actions are less likely to be “evidence of irretrievabl[e] deprav[ity].” Id. at 570 (citing ERIK H. ERIKSON, IDENTITY; YoUTH AND CRisis (1968)). 19 Despite Defendant’s behavioral/mental health needs, educational challenges and violent/traumatic familial environment, Defendant stayed out of the juvenile justice systeme Four months prior to his first YRS placement, when Defendant was fourteen and a half years old, Defendant’s uncle was murdered while recording music at the Rose Hill Community Center. This relative was Defendant’s healthy male role model; a “real uncle” who played basketball with Defendant. Notwithstanding this traumatic loss, no grief treatment or counseling was ever provided to Defendant. This time period appears to coincide with the beginning of Defendant’s substance abuse history, at age fourteen. No substance abuse counseling or treatment was provided. From an educational standpoint, Defendant’s academies were at risk for math, reading, and writing, and it is unclear why he was not assessed for special education services A review of his education records reveals that he struggled with his behavior and academies for years, which required Rockford Center placements At age thirteen, mental health service providers, through PBH, ordered or recommended services for Defendant. However, his family did not follow-up and he went without services At age fourteen, Delaware Guidance Services recommended services for his mental health diagnoses including ODD. F or reasons that are not clear, all services were discontinued, likely due to his admission at Rockford Center. 20 As to this factor, Defendant faced inordinate challenges with little assistance from the adults in his life, except from perhaps his maternal grandmother. By way of reference, Defendant’s history is different than the defendant in State v. Benson, where the Superior Court denied the transfer to Family Court of a seventeen-year- old charged with firearms and companion charges28 The Court noted, in weighing the § 1011(b) factors, that: ln terms of his social development, there is no indication that this Defendant was subject to physical or emotional abuse by his family, nuclear or extended Equally absent is evidence of involvement with alcohol or illegal drugs Lastly, at the time of the hearing, he was still enrolled as a student in a local public high school.29 This Court finds that Defendant received minimal prior treatment However, what little treatment he received he complied with and successfully completed As such, the second § 1011(b) factor weighs in favor of a transfer to Family Court, deemed meaningless unless the agency agrees to provide services while Defendant has pending adult charges IV. Section l011(b) Factor Three: Whether the Interests of Societv and Defendant Are Served bv Trial in Family Court or Superior Court As to the third § 1011(b) factor, the Court looks at “[w]hether the interests of society and the defendant would be best served by” the transfer to Family Court. 21 1998 wL 755185(1)@1. super Juiy 17, 1998). 29 1a at *2. 21 When assessing this factor, this Court is guided by State v. Johnson, where the Superior Court determined that it was “not in the interests of society to place the remaining charges in Family Court for treatment Defendant does not need and that [YRS] cannot provide. . . .”30 Dr. Timme and Ms. Batista presented undisputed evidence that Defendant needs services that can be provided through YRS. Ms. Skinner concurred that, but for the State’s charging decision on the firearm offenses, Defendant is amenable to the services they could offer at YRS. This factor also weighs in favor of a transfer. CONCLUSION Defendant moved through the spectrum of the DSCYF, identifying first as a child who was neglected, dependent and abused lt is not uncommon to see how these traumatic adverse childhood events would affect his behavioral and mental states Left untreated, it should come as no surprise that Defendant landed in the criminal justice system. Interestingly, the undisputed evidence was promising YRS and Defendant’s experts established that Defendant is amenable to Family Court if transferred back. After weighing the § 1011(b) factors, this Court finds that although amenable, the rationale for a transfer would meet resistance under existing YRS policies that focus on the pending adult firearm charges Given the current state of the 30 2012 wL 2835024, at *4 (Del. super June 15, 2012). 22 DSCYF/YRS structure, the charging decision of the State has the effect of automatically forcing the matter to remain in this Court. Should YRS be amenable (no pun intended) to modify its existing policies, the Court’s ruling would have been different The hope is that YRS will review its existing practices to better comport with the mandates and the spirit of our juvenile transfer system. Therefore, Defendant’s Motion to Transfer his companion charges must be DENIED. IT IS SO ORDERED. //\/ /W VivianL. Meditf/ la Judge // L/// oc: Prothonotary cc: Patrick J. Collins, Esquire Mark. A. Denney, Esquire Jennifer Skinner, Master Family Service Specialist 23

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 96-4817 ANTONELLA KEYS, Defendant-Appellant. Appeal from the United States District Court for the District of South Carolina, at Greenville. William B. Traxler, Jr., District Judge. (CR-95-504) Submitted: April 17, 1997 Decided: May 1, 1997 Before NIEMEYER and WILLIAMS, Circuit Judges, and BUTZNER, Senior Circuit Judge. _________________________________________________________________ Affirmed by unpublished per curiam opinion. _________________________________________________________________ COUNSEL Janis Richardson Hall, Greenville, South Carolina, for Appellant. David Calhoun Stephens, Assistant United States Attorney, Green- ville, South Carolina, for Appellee. _________________________________________________________________ Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). OPINION PER CURIAM: Appellant Antonella Keys was convicted pursuant to her guilty plea of one count of making false statements to a bank in violation of 18 U.S.C. § 1014 (1994). Keys' counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), challenging whether the district court was clearly erroneous in its determination as to the amount of loss attributable to her and for not granting her a downward adjustment for being a minor participant.* Finding no error, we affirm. Keys was part of a scheme in which counterfeit MasterCards, with legitimate account numbers but fictitious names, were used to obtain cash advances from banks in South Carolina. Keys' role in the scheme was to go into the banks and obtain the money. The presen- tence report calculated the amount of loss between $120,000 and $200,000. We find that the district court was not clearly erroneous in its deter- mination as to the amount of loss attributable to Keys or by refusing to grant a downward adjustment for being a minor participant. Keys bore the burden of showing that the amount of loss contained in the presentence report was inaccurate, which she admitted she could not do. See United States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990). Fur- thermore, while Keys may have only been responsible for a small fraction of the losses incurred by banks due to fraud nationwide, the district court properly found that she was not a minor participant in this particular scheme. We have examined the entire record in this case in accordance with the requirements of Anders, and find no meritorious issues for appeal. The court requires that counsel inform her client, in writing, of her right to petition the Supreme Court of the United States for further _________________________________________________________________ *Keys has also filed a pro se supplemental brief in which she asks this court to order that she be placed on home detention, rather than in a half- way house, following her release. Since such action is within the discre- tion of the district court, we decline to grant the requested relief. 2 review. If the client requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Coun- sel's motion must state that a copy thereof was served on the client. We affirm the district court's judgment order. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 3 

723 F.2d 904 U.S.v.Walker (James Henry) NO. 83-5040 United States Court of Appeals,Fourth circuit. DEC 01, 1983 1 Appeal From: E.D.N.C. 2 AFFIRMED.

United States Court of Appeals FOR THE EIGHTH CIRCUIT ________________ No. 04-2001 ________________ Max M. Mason, * * Appellant, * * Appeal from the United States v. * District Court for the * Western District of Missouri. Jo Anne B. Barnhart, * Commissioner of Social Security, * [PUBLISHED] * Appellee. * ________________ Submitted: January 13, 2005 Filed: May 5, 2005 ________________ Before LOKEN, Chief Judge, HANSEN and MORRIS SHEPPARD ARNOLD, Circuit Judges. ________________ HANSEN, Circuit Judge. The Social Security Administration (SSA) issued a notice of overpayment of benefits to Max M. Mason concerning social security retirement benefits that he received in 1997. Mason appeals the district court’s1 grant of summary judgment to the Commissioner upholding the SSA’s determination, and we affirm. 1 The Honorable Fernando J. Gaitan, Jr., United States District Judge for the Western District of Missouri.  I. Mason owned and operated a real estate development company called Asset Management & Service Corp. (“the company”), which elected to be treated as a “small business corporation,” or an S corporation, under relevant federal tax laws. See 26 U.S.C. § 1362(a), I.R.C. § 1362(a) (2000). In 1991, Mason sold one-third of his interest in the company to his son and one-third of his interest to his daughter, retaining a one-third interest in the company. He entered into a consulting agreement with the company in 1990, under which he was to receive $100,000 upon signing the agreement and $5,000 per month through December 31, 1996. The agreement and the consulting fee were extended through 2000. Mason did not receive payment under the contract, but in 1997 he reported $264,398 as Schedule C income on his individual Form 1040 income tax return pursuant to a Form 1099 issued to him by the company. The company, an accrual-basis taxpayer, experienced $283,000 of earned but uncollected income in 1997 and sought to minimize the tax effect of that income on its shareholders by deducting the $264,398 consulting fees paid to Mr. Mason against the same period’s income. Mason admitted making the conscious decision to handle the consulting fees in this manner as he was the “only one” able to obtain the funds necessary to pay any applicable taxes.2 The company did not pay Mason the $264,398 but issued him a “promise” to pay it when the company sold some developing lots that it anticipated would be sold a few years down the road. Mason borrowed over $20,000 to pay the resulting income and self-employment taxes computed on his 1997 tax return. 2 As an S corporation, the company does not pay taxes on its net income but passes the net income through to its shareholders on a pro rata basis. See I.R.C. §§ 1363(a), 1366(a). In effect, Mason took the full brunt of the income earned by the company, alleviating his children, as shareholders, from reporting their share of the income and paying taxes on income they did not receive. -2-  Mason turned 62 in 1992 and began receiving social security retirement benefits at that time. The SSA issued a notice in 1999 advising Mason that it had overpaid his benefits in 1997 by nearly $10,000 because the self-employment earnings reported on his 1997 Form 1040 reduced his social security benefits to $0 for the year. Mason sought a hearing before an administrative law judge (ALJ), where he argued that he had “prepaid” the income taxes on the reported income, which he had yet to receive. As a cash basis taxpayer, he argued that the reported income was not earnings that could be used to reduce his social security benefits under the social security regulations. The ALJ upheld the SSA’s determination. The Appeals Council denied Mason’s request for review, and he brought suit in district court, seeking review of the Commissioner’s final decision. The district court granted summary judgment to the Commissioner, and Mason appeals. II. We review de novo the district court’s grant of summary judgment, applying the same standards applied by the district court. See Reeder v. Apfel, 214 F.3d 984, 986-87 (8th Cir. 2000). The Social Security Act provides for judicial review of final decisions of the Commissioner, which is limited to determining whether substantial evidence in the record as a whole supports the Commissioner’s decision, and whether the Commissioner correctly applied the relevant legal standards. See 42 U.S.C. § 405(g) (2000); Berger v. Apfel, 200 F.3d 1157, 1161 (8th Cir. 2000). The Social Security Act permits a retired person to engage in some work activity without losing social security retirement benefits. See 42 U.S.C. § 403(b), (f) (2000). Once the individual’s earnings exceed the applicable exempt amount, which was $13,500 in 1997, see 64 Fed. Reg. 57506, 57509 (Oct. 25, 1999), social security benefits are reduced one dollar for each three dollars earned above the exempt amount. See § 403(b),(f); 20 C.F.R. §§ 404.415(a), 404.430. The issue in this case is whether the self-employment earnings reported on Mason’s 1997 Form -3- 1040, for which he received no cash in 1997, are earnings for purposes of determining whether Mason had excess earnings that would reduce his social security retirement benefits. The social security regulations define “earnings” as “an individual’s earnings for a taxable year,” which include both “wages” and “net earnings from self-employment.” 20 C.F.R. § 404.429(a). Net earnings from self-employment are determined under subpart K of the social security regulations (20 C.F.R. §§ 404.1001-404.1096). See § 404.429(b). In explaining “earnings in a taxable year,” the regulations provide that “[n]et earnings from self-employment . . . are derived, or incurred, and are includable as earnings . . . in the year for which such earnings . . . are reportable for Federal income tax purposes.” § 404.428(b). See also 20 C.F.R. § 404.1080(d)(3) (“Your taxable year for figuring self-employment income is the same as your taxable year for the purposes of subtitle A of the [Internal Revenue] Code.”). The Social Security Act and the Internal Revenue Code are to be construed similarly, as one determines on what earnings an individual will receive credit for benefit purposes, and the other determines on what earnings an individual must pay social security tax. See 20 C.F.R. § 404.1001(c). Thus, we must determine whether Mason’s 1099 income was “reportable” for income tax purposes in 1997 to determine whether it was properly included as excess earnings for social security purposes. Mason argues that as a cash basis taxpayer, the 1099 income was not reportable until he received it, even though he actually reported it on his 1997 return, relying on 20 C.F.R. § 404.1080(c) (defining “net earnings from self-employment” by providing that “[y]our gross income from a trade or business includes gross income you received (under the cash basis method) or that accrued to you (under the accrual method) from the trade or business in the taxable year.”). The Tax Code is not as simple as Mason would have it. Many interrelated provisions are involved. The Code requires a business that pays remuneration to any person for services performed during the calendar year to file an information return, a Form 1099, reporting the -4- recipient’s name and address and the amount of the payment. I.R.C. § 6041A(a). If the business is related to the person performing the services, the business cannot deduct the payment on its corporate tax return as a business expense unless the recipient includes the payment as income on his individual tax return in the same year. See I.R.C. § 267(a)(2).3 Receipt of a Form 1099 does not conclusively establish that the recipient has reportable income. If a recipient of a Form 1099 has a reasonable dispute with the amount reported on a Form 1099, the Code places the burden on the Secretary of the Treasury to produce reasonable and probative information, in addition to the Form 1099, before payments reported on a Form 1099 are attributed to the recipient. See I.R.C. § 6201(d). Applying these tax provisions to the facts of this case, it is clear that Mason received reportable income in 1997. Asset Management & Service Corp. issued a Form 1099 to Mason reporting payments of $264,398. Mason did not invoke the procedures of I.R.C. § 6201(d) or otherwise dispute the amount reported. Rather, he reported the amount on his cash-basis Schedule C of his 1997 Form 1040 as earnings from self-employment and paid the corresponding income and self-employment taxes. Asset Management & Service Corp. deducted the reported payment as a consulting fee on its S Corporation tax return, greatly reducing the income subject to taxation that passed through to its shareholders. Mason made a conscious decision to treat the income as reportable (and so reported it) and now must accept all of the resulting consequences. See Bean v. Comm’r, 268 F.3d 553, 557 (8th Cir. 2001). 3 Related taxpayers for purposes of § 267(a)(2) include an individual and a corporation if the individual owns, directly or indirectly, more than 50 percent of the outstanding stock of the corporation. § 267(b)(2). An individual is considered to constructively own the stock owned by his family, including his lineal descendants. § 267(c)(2), (4). Thus, Mason constructively owns 100% of the stock of Asset Management & Service Corp. because he directly owns one-third of the outstanding stock and his children own the other two-thirds of the outstanding stock. -5-  Having established that the 1099 income was reportable for income tax purposes, we conclude that it was also earnings under the social security regulations and properly included in calculating Mason’s excess earnings for social security purposes. See § 404.428(b); 20 C.F.R. § 404.1080(d)(3). Mason cannot have it both ways. Either the 1099 income was reportable for both income tax and social security purposes, or it was not. Having reported the income on his tax return, the income must be recognized as excess earnings for social security purposes. See Carlson v. Bowen, 831 F.2d 814, 817 (8th Cir. 1987) (“[W]hen Carlson . . . reported the earnings as income taxable in 1982, the result was inclusion of the $4,200 in earnings for the purpose of applying the annual earnings test in 1982.” (citing 20 C.F.R. § 404.428(b)). III. The district court’s judgment is affirmed. ______________________________ -6- 

540 U.S. 892 WEEMSv.UNITED STATES. No. 03-5175. Supreme Court of United States. October 6, 2003. 1 Appeal from the C. A. 1st Cir. 2 Certiorari denied. Reported below: 322 F. 3d 18.

1 F.3d 1240 NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Ramona and Johnny BRANHAM, Plaintiffs-Appellants,v.Lee W. DAVIS, D.O., Defendant-Appellee. No. 92-6160. United States Court of Appeals, Sixth Circuit. July 12, 1993. Before NELSON and SUHRHEINRICH, Circuit Judges, and CELEBREZZE, Senior Circuit Judge. PER CURIAM. 1 This is a medical malpractice case, filed in federal court on diversity grounds, that was dismissed for want of prosecution some two and a half years after commencement of the action. The sole question presented on appeal is whether the district court abused its discretion in dismissing the action and denying a motion for reconsideration of the dismissal. Finding no abuse of discretion, we shall affirm the challenged decisions. 2 * The plaintiffs, Ramona and Johnny Branham, filed their lawsuit on January 22, 1990. The complaint, which was very short on specifics, alleged that the defendant, Dr. Davis, attended Mrs. Branham at the delivery of a baby on January 23, 1989, and negligently failed to exercise an appropriate degree of care and skill. 3 On April 30, 1990, the district court ordered that all discovery be completed before November 1, 1990; that all pretrial motions be filed before December 1, 1990; and that a pre-trial conference be held on January 7, 1991. On motion of the plaintiffs the discovery period was later extended to May 1, 1991. On May 13, 1991, the court extended the discovery period to June 1, 1991, again at the instance of the plaintiffs. On May 31, 1991, the trial (then set for July 23, 1991) was continued on motion by the defendant. 4 The rescheduled pre-trial conference was further continued, upon the plaintiffs' motion, on September 9, 1991. At that time the court set December 7, 1992, as the date for a pre-trial conference and January 5, 1993, as the date for trial. 5 On February 21, 1992, having learned that plaintiffs' counsel intended to withdraw, the defendant moved the court either to dismiss the case for want of prosecution or order the plaintiffs to obtain new counsel by March 15. The plaintiffs' lawyer responded with a motion to withdraw and to allow the plaintiffs thirty days to secure new counsel. On May 26, 1992, the court denied the defendant's motion and ordered that "the plaintiffs' counsel's motion to withdraw in this matter be, and the same hereby is, GRANTED. The plaintiffs shall have 30 days from the date of entry of this order to obtain new counsel." 6 No new counsel entered an appearance for the plaintiffs within the prescribed thirty-day period. The defendant doctor renewed his dismissal motion on July 8, 1992, focusing this time on the plaintiffs' failure to comply with the court's order to obtain new counsel. The court granted the motion and dismissed the case on July 14, 1992. 7 On July 20, 1992, through a lawyer who appeared solely for this limited purpose, the plaintiffs moved for reconsideration of the dismissal. The lawyer attached an affidavit indicating that he had assisted the Branhams in trying to find new counsel; that an attorney who agreed to review the file had decided, after doing so, not to represent the plaintiffs; and that the plaintiffs had "acted with due diligence" in trying to secure new counsel. The affidavit said that the file was being sent to a lawyer in Virginia for review, but there was no other indication that the plaintiffs would ever be able to find a lawyer willing to take their case. 8 By order of August 7, 1992, the court denied the motion to reconsider. This appeal followed. II 9 Because it was filed within ten days of the district court's entry of final judgment, we construe the Branhams' motion for reconsideration as a motion made pursuant to Rule 59(e), Fed.R.Civ.P. The underlying judgment is subject to appellate review after denial of a Rule 59(e) motion. Peabody Coal Co. v. Local Union Nos. 1734, 1508, and 1534, UMW, 484 F.2d 78, 80 (6th Cir.1973), cert. denied after subsequent appeal, 430 U.S. 940 (1977). The standard that we apply in reviewing the denial of a Rule 59(e) motion is abuse of discretion. McMahon v. Libbey-Owens-Ford Co., 870 F.2d 1073, 1078 (6th Cir.1989). 10 The district court's dismissal of the Branhams' action represented an exercise of the court's power under Rule 41(b), Fed.R.Civ.P. That rule provides, in relevant part, that "[f]or failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant." The district court's power to dismiss pursuant to Rule 41(b) is discretionary. Bishop v. Cross, 790 F.2d 38 (6th Cir.1986). 11 In Link v. Wabash, 370 U.S. 626, 630 (1962), the Supreme Court recognized "the power of courts, acting on their own initiative, to clear their calendars of cases that have remained dormant because of the inaction or dilatoriness of the parties seeking relief." Link noted that a court's failure to give notice of the possibility of dismissal for failure to follow a court order does not necessarily mean that such a dismissal is void; the propriety of a decision to dismiss may be judged largely on the basis of "the knowledge which the circumstances show [the party whose case is dismissed] may be taken to have of the consequences of his own conduct." Id. at 632. 12 The appellants rely chiefly on Harris v. Callwood, 844 F.2d 1254 (6th Cir.1988). In Harris this court examined a series of Rule 41(b) cases from this circuit and others and extracted the following principle: "[I]n the absence of notice that dismissal is contemplated[ ,] a district court should impose a penalty short of dismissal unless the derelict party has engaged in 'bad faith or contumacious conduct.' " Id. at 1256, quoting Bishop, 790 F.2d at 39. 13 The Harris court was reviewing a decision to dismiss a case sua sponte upon the failure of a pro se litigant to appear at a final settlement conference. The case at bar, by contrast, was dismissed only after the defendant had twice moved for dismissal. The plaintiffs had been served with copies of both motions, and the plaintiffs were on notice that the district court's order of May 26, 1992, gave them 30 days to obtain new counsel. This was all the time their lawyer had asked for, of course, and on the record of this case it was not unreasonable to charge the plaintiffs with knowledge that their case might be dismissed if they failed to meet the deadline they themselves had suggested. It was therefore within the discretion of the district court to dismiss the case without a showing of bad faith or contumacious conduct. 14 Given the length of time the case had been pending, given the failure of the original complaint to set forth a plain statement of the plaintiffs' claim, given the lack of enthusiasm for the case exhibited by the lawyer who filed the matter originally, and given the fact that other lawyers who were familiar with the case had no interest in trying it themselves and apparently could not recommend any lawyer who had such an interest, the district court would have been justified, we believe, in surmising that the plaintiffs may not have had a particularly strong case. Where there is a realistic prospect of a lawyer's being able to pocket a contingent fee of any size, it has been our experience that competent trial lawyers are not hard to find. This case was not dismissed until more than 40 months after the plaintiffs' cause of action was said to have accrued, and if the plaintiffs could not secure adequate legal representation in that length of time, it is not unlikely that the case never belonged on the docket of a busy federal court in the first place. Be that as it may, we are satisfied that the district court did not abuse its discretion in dismissing the action and declining to reinstate it upon reconsideration. 15 AFFIRMED.

720 So.2d 535 (1998) NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH PENNSYLVANIA, a Pennsylvania corporation licensed to do business in the State of Florida, Petitioner, v. FLORIDA CONSTRUCTION, COMMERCE AND INDUSTRY SELF INSURERS FUND, a Florida mutual insurance company, and Florida Employees Insurance Service Corporation, a Florida corporation, and Hewitt, Coleman & Associates, a Florida corporation, Respondents. No. 97-04756. District Court of Appeal of Florida, Second District. June 24, 1998. Rehearing Denied October 12, 1998. Kimberly A. Staffa and David J. Abbey of Fox, Grove, Abbey, Adams, Byelick & Kiernan, L.L.D., St. Petersburg, for Petitioner. Morgan R. Bentley, M. Lewis Hall, III, and David A. Wallace of Williams, Parker, Harrison, Dietz & Getzen, Sarasota, for Respondents, Florida Construction, Commerce and Industry Self Insurers Fund, and Florida Employees Insurance Service Corporation; and Todd W. Vraspir of Papy & Weissenborn, P.A., Tampa, for Respondent, Hewill, Coleman & Associates. PER CURIAM. This petition for writ of certiorari seeks review of a pretrial order granting a motion to compel National Union Fire Insurance Company of Pittsburgh Pennsylvania (National Union) to release its claim file documents to Florida Construction, Commerce and Industry Self Insurers Fund (FCCI). National Union contends that the documents in the file are protected work product and, therefore, are privileged. We grant the petition for writ of certiorari and quash the pretrial order. Generally, a trial court is allowed broad discretion in discovery matters. The standard for review in a petition for writ of *536 certiorari regarding a discovery issue is whether the trial court departed from the essential requirements of the law, thereby causing irreparable harm to the petitioner. See Wal-Mart Stores, Inc. v. Weeks, 696 So.2d 855, 856 (Fla. 2d DCA 1997); American Southern Co. v. Tinter, Inc., 565 So.2d 891 (Fla. 3d DCA 1990). Upon review of the petition, response, and record before this court, we hold that the order compelling National Union to disclose the documents based strictly on the dates of their creation constitutes a departure from the essential requirements of the law which will arguably cause it irreparable injury throughout the remainder of the proceedings in the trial court for which a remedy on appeal would be inadequate. During 1979 and 1980, National Union issued two excess workers' compensation policies to FCCI, and pursuant to those policies, National Union was obligated to reimburse FCCI for individual claims which exceeded $250,000 during 1979 and $300,000 during 1980. FCCI contends in its complaint that National Union breached the terms of the policy by failing to reimburse FCCI for a claim in 1979 by John Racki and a claim in 1980 by John Johnson. National Union denied liability, asserting that the notices of the claims were untimely presented. FCCI filed an amended request for production of claim file documents which read: "All claim files for claims arising during 1979 and 1980 involving or related to claims of FCCI or members of FCCI for which National Union has set a reserve." In addition to the Johnson and Racki files, there were ten other claim files, with both pending claims and closed claims, which met the parameters of this request. National Union filed a motion for protective order on all the files, arguing several grounds including work product and attorney-client privilege. The court denied National Union's motion, but set forth a procedure for National Union to object to any particular document and indicated there would be a further hearing on those documents for which National Union claimed privilege. Document production between National Union and FCCI went forward in July 1997. Following the release of some file documents by National Union, FCCI filed a second motion to compel the in camera inspection of the remaining unreleased documents. National Union provided the trial court with an amended comprehensive log of the documents in the claim files it considered covered by the work product and attorney-client privilege. The log was accompanied by an affidavit of National Union's claims manager, Dwain Darrien. Darrien asserted that all the documents listed in the log were prepared after National Union received written notice of FCCI's claims and had sent a letter denying the claim for lack of proper notice. Darrien asserted the documents contained personal thoughts, evaluations, and recommendations regarding the claims and the possibility of litigation which were never intended to be disclosed to third parties. The court reviewed the privilege log on the other ten claim files and found there were no attorney-client communications contained in the documents. The court then determined that the documents in those files could not be protected by the work product doctrine unless the claims in the files were the subject of litigation. The court found no evidence indicating that documents created before the 1994 institution of the suit were prepared in anticipation of litigation, but rather determined the documents were created in the normal course of business. The court interpreted DeBartolo-Aventura, Inc. v. Hernandez, 638 So.2d 988 (Fla. 3d DCA 1994), and Cotton States Mutual Insurance Co. v. Turtle Reef Associates, Inc., 444 So.2d 595 (Fla. 4th DCA 1984), to hold that if a document was created for any reason other than imminent litigation, by definition it could not be considered work product protected. The court failed to examine all the documents sought by FCCI, but instead relied upon its determination that any document created before the December 1994 institution of the suit was created in the normal course of business, and ordered the release of the documents in all the files. This decision was erroneous. As explained by this court in Waste Management, Inc. v. Florida Power & Light Co., 571 So.2d 507, 509-10 (Fla. 2d DCA 1990): *537 The key factor in our determination is whether the documents were "prepared in anticipation of litigation." It is not necessary that the documents be prepared for imminent or ongoing litigation. See Anchor Nat'l Fin. Servs., Inc. v. Smeltz, 546 So.2d 760 (Fla. 2d DCA 1989); Florida Cypress Gardens, Inc. v. Murphy. But see Cotton States Mut. Ins. Co. v. Turtle Reef Assocs., Inc., 444 So.2d 595 (Fla. 4th DCA 1984) (work product privilege attaches to documents prepared "in contemplation of litigation," not for "mere likelihood of litigation"). As we observed in Anchor National, "[e]ven preliminary investigative materials are privileged if compiled in response to some event which foreseeably could be made the basis of a claim." Anchor Nat'l, 546 So.2d at 761. We find unrefuted evidence in the affidavit by Dwain Darrien, National Union's claims manager, that the items were prepared in anticipation of litigation, and therefore, a limited privilege attaches to them. Materials such as these may qualify as work product despite the fact that, as here, no specific litigation is pending at the time the materials are compiled. See Waste Management, 571 So.2d at 507; Anchor Nat'l Fin. Servs., Inc. v. Smeltz, 546 So.2d 760 (Fla. 2d DCA 1989); Florida Cypress Gardens, Inc. v. Murphy, 471 So.2d 203 (Fla. 2d DCA 1985). The trial court must focus on whether there is some event which could foreseeably be the basis of future litigation that compels the creation of the documents. Here, that event was National Union's response to FCCI's notice of claim which declared that the notice of claim was untimely. Therefore, we hold that National Union made a sufficient showing that the documents in question may be protected under the work product doctrine, and the trial court departed from the essential requirements of the law in requiring their production without further inquiry regarding whether FCCI is able to overcome that privilege. Accordingly, the petition for writ of certiorari is granted and the order requiring National Union to produce the documents is quashed. On remand, the trial court must examine the documents to determine if the work product privilege applies to each document, and if so, further inquiry will be necessary to determine if FCCI can overcome that privilege. QUINCE, A.C.J., and WHATLEY and NORTHCUTT, JJ., concur.

Case: 13-60111 Document: 00512479354 Page: 1 Date Filed: 12/20/2013 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED December 20, 2013 No. 13-60111 Summary Calendar Lyle W. Cayce Clerk ARIF YUSUF VHORA; NASIMBEN ARIFBHAI VHORA; AYMAN ARIFBHAI VHORA; RAWHABEN ARIFBHAI VHORA, Petitioners v. ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL, Respondent Petition for Review of an Order of the Board of Immigration Appeals BIA Nos. A087 380 081, A087 380 082, A087 380 083, A087 380 084 Before BENAVIDES, CLEMENT, and OWEN, Circuit Judges. PER CURIAM: * Arif Yusuf Vhora, a native and citizen of India, filed applications for asylum, withholding of removal, and relief under the Convention Against Torture (CAT) based on persecution on account of his Muslim religion. Vhora’s wife, Nasimben Arifbhai Vhora, and his two daughters, Ayman Arifbhai Vhora, Rawhaben Arifbhai Vhora, seek derivative benefits of his asylum application. * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.  Case: 13-60111 Document: 00512479354 Page: 2 Date Filed: 12/20/2013 No. 13-60111 The Immigration Judge (IJ) made an adverse credibility finding and determined that Vhora failed to satisfy his burden of proof for asylum, withholding of removal, and relief under the CAT. The IJ alternatively determined that, even if Vhora was credible, he nevertheless failed to satisfy his burdens of proof. The IJ’s decision was upheld by the Board of Immigration Appeals (BIA) when it dismissed Vhora’s appeal. Vhora argues that the IJ’s adverse credibility determination was erroneous. We review questions of law de novo and factual findings for substantial evidence. Tamara-Gomez v. Gonzales, 447 F.3d 343, 347 (5th Cir. 2006). Under the substantial evidence standard, reversal is improper unless we decide that the evidence compels a contrary conclusion. Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir. 2007). Because an IJ “may rely on any inconsistency or omission in making an adverse credibility determination as long as the totality of the circumstances establishes that an . . . applicant is not credible,” we must defer to that determination “unless it is plain that no reasonable factfinder could make” such a ruling. Wang v. Holder, 569 F.3d 531, 538 (5th Cir. 2009) (internal quotation marks and citation omitted). The IJ noted the following inconsistencies between Vhora’s sworn statement and testimony: (1) inconsistencies concerning whether he was the only worker at the Udna mosque; (2) the implausibility that his work at the Udna mosque would result in four arrests over a ten-year period in different cities throughout the state of Gujarat; (3) inconsistencies concerning the dates of his marriage and his second arrest; (4) inconsistencies concerning whether he was recruited to work for the Bajja Hindu party in a 1997 election; and (5) inconsistencies concerning why his visa was cancelled. The IJ further found that the additional evidence he submitted did not explain these inconsistencies or the implausibility of his statements. Vhora fails to show that, in light of the 2  Case: 13-60111 Document: 00512479354 Page: 3 Date Filed: 12/20/2013 No. 13-60111 totality of the circumstances, it is plain that no reasonable factfinder could make such a credibility determination. See Wang, 569 F.3d at 538. The IJ and BIA further determined that, even if his testimony were credible, Vhora did not show that he has a well-founded fear of future persecution if he returned to India because he voluntarily returned to India twice from South Africa and once from the United States; he did not explain why he returned instead of arranging for his family to leave India. See Dayo v. Holder, 687 F.3d 653, 657 (5th Cir. 2012). The IJ and BIA also determined that there was evidence that Vhora and his family could relocate within India because the Indian Government has taken steps to protect Muslims including appointing commissions to investigate, study, and make recommendations for preventing violence, ten years have passed since the violence in Gujarat, the Hindu BJP party was defeated in the 2004 elections, and there are six states in India with large Muslim populations and two states in which Muslims are the majority. Vhora has not shown that the record evidence compels a contrary conclusion. See Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir. 2007). Vhora also has not shown that the IJ and BIA erred in holding that he failed to satisfy the higher burden of showing that he was entitled to withholding of removal. See Arif v. Mukasey, 509 F.3d 677, 680 (5th Cir. 2007). Finally, Vhora has failed to show that his testimony and documentary evidence sufficed to warrant relief under the CAT. See Efe v. Ashcroft, 293 F.3d 899, 907 (5th Cir. 2002). PETITION DENIED. 3 

755 F.Supp. 36 (1991) ERVA PHARMACEUTICALS, INC., Plaintiff, v. AMERICAN CYANAMID COMPANY, Defendant. Civ. No. 90-1344 (JP). United States District Court, D. Puerto Rico. January 24, 1991. *37 Federico Calaf, Reichard & Calaf, San Juan, P.R., for plaintiff. Jorge L. Guerrero, Hato Rey, P.R., for defendant. *38 OPINION AND ORDER PIERAS, District Judge. The Court has before it defendant's motion for summary judgment and plaintiff's partial motion for summary judgment. This action arises under the Puerto Rico Trademark Act, 10 L.P.R.A. § 202. Plaintiff seeks damages and injunctive relief for defendant's alleged infringement of its trademark "SUPRA." Defendant American Cyanamid Company ("American"), who removed the case to this Court from the Superior Court of Puerto Rico, has filed a counterclaim based on false designation of origin, trademark infringement, and unfair competition under the Lanham Act and the relevant provisions of the Puerto Rico Civil Code. American also requests damages and injunctive relief for plaintiff's alleged violations. For the reasons stated below, we deny plaintiff's motion and grant defendant's motion for summary judgment. I. BACKGROUND The plaintiff, Erva Pharmaceuticals, Inc. ("Erva"), is a Puerto Rico corporation, with its offices and principal place of business in Santurce, Puerto Rico. (Initial Scheduling Conference Order, Stipulation # 1 of parties). Plaintiff Erva sells the pharmaceutical product with the trademark "SUPRA", which is manufactured in the continental United States. This product, sold by prescription only, claims to be "A New Concept in Treatment of Erectile Impotence." See Exhibit 7 to defendant's Summary Judgment Motion filed July 2, 1990. It contains the active ingredient "Yohimbine Hydrochloride", and according to the insert in the package, "SUPRA" may "have activity as an aphrodisiac." Id. The product is manufactured by JMI-Canton Pharmaceutical, Inc., in Canton, Ohio. The plaintiff has registered the trademark "SUPRA" in the Commonwealth of Puerto Rico, (Registration No. 27,551), since January 16, 1987. The date of the first use claimed in the petition for registration is March 26, 1986. American Cyanamid is a Maine corporation with offices and principal place of business in New Jersey. Defendant American Cyanamid sells the antibiotic product "SUPRAX," which is used for "pediatric otitis media," or inner ear infections. The product is manufactured by Lederle Laboratories Division of American Cyanamid Company in New York, under license of Fujisawa Pharmaceutical Co., Ltd., a Japanese company. The defendant has registered the trademark for this product and has been the owner of the United States Trademark "SUPRAX" (Registration No. 1,456,050), since September 8, 1987. The date of the first use claimed in the petition for registration is April 21, 1986. The "SUPRAX" registration in Puerto Rico (Registration No. 29,275), was made on April 10, 1990. The date of the first use claimed in this petition for registration is September 15, 1989. American Cyanamid has been using this trademark in interstate commerce and in Puerto Rico, and its products using this trademark are sold to customers throughout the United States and Puerto Rico. Both the parties have stipulated that neither has consented to nor authorized the other to use its trademark in any way which is confusingly similar to the others' trademark. II. SUMMARY JUDGMENT — THE LEGAL STANDARD A motion for summary judgment is appropriately granted when: [T]he pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A "genuine" issue is one that is dispositive and that must be decided at trial. FDIC v. Municipality of Ponce, 904 F.2d 740, 742 (1st Cir.1990). The issue must be decided at trial because the evidence, when viewed in the light most favorable to the nonmovant, would allow a reasonable juror to resolve the issue in favor of either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-250, 106 S.Ct. *39 2505, 2510-2511, 91 L.Ed.2d 202 (1986); Mack v. Great Atlantic and Pacific Tea Co., 871 F.2d 179, 181 (1st Cir.1989). The evidence illuminating the factual controversy cannot be "conjectural or problematic; it must have substance in the sense that it limns differing versions of the truth which a factfinder must resolve...." Mack, 871 F.2d at 181. A "material" fact is one which affects the outcome of the case and must be resolved before consideration of related legal issues. Municipality of Ponce, 904 F.2d at 742. Therefore, in a summary judgment motion, the burden is on the moving party to demonstrate "an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2254, 91 L.Ed.2d 265 (1986). The nonmovant then bears the burden of establishing the existence of a genuine material issue. Brennan v. Hendrigan, 888 F.2d 189, 191 (1st Cir.1989). However, the nonmovant may not rest upon mere allegations or denial of the pleadings; it must respond, by affidavits or other supporting evidence, setting forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e). III. TRADEMARK LAW, PRIORITY OF SENIOR USER AND LAWFUL USE IN COMMERCE From the outset, we note that the trademark and unfair competition law of Puerto Rico is congruous with the common law principles developed by the federal courts. Rand, Ltd. v. Lazoff Bros., Inc., 537 F.Supp. 587 (D. P.R.1982). Chapter 11 of the Annotated Laws of Puerto Rico, 10 L.P.R.A. §§ 191-215, establishes the framework for trademark registration and protection in Puerto Rico. Section 191 of the statute states that the "owners of trademarks used in commerce in Puerto Rico ... may obtain registration of such trademarks by complying with the following requisites...." Id. The statute further provides that no trademark shall be registered "which was not lawfully used in Puerto Rico by the applicant or his predecessor prior to the date of filing the application." 10 L.P.R.A. § 194(f) (1978). Thus, in order to assert protection of the trademark laws, the prior use upon which the trademark registration was based must have been lawful. This is a corollary of the well-settled principle that a trademark right is not acquired by registration, but rather by use; the property right originates in common law by prior appropriation and use. Keebler Co. v. Rovira Biscuit Corp., 624 F.2d 366 (1st Cir. 1980); 4A R. Callman, The Law of Unfair Competition, Trademarks, and Monopolies § 25.03 (4th ed. 1983) (citations omitted). Under the common law, the exclusive right to use a trademark belongs to the first who appropriates it and uses it in connection with a particular business. Armstrong Cork Co. v. Armstrong Plastic Covers Co., 434 F.Supp. 860 (E.D.Mo.1977). See also 7 J. Kalinowski, Antitrust Laws and Trade Regulation § 59.02[3][ii] (citing Trademark Cases, 100 U.S. 82, 94, 25 L.Ed. 550 (1879)). However, in order to enforce the trademark rights, the prior use must be lawful. The Puerto Rico statute incorporates this principle as it provides that no trademark shall be registered "which was not lawfully used in Puerto Rico by the applicant or his predecessor prior to the date of filing the application." 10 L.P.R.A. § 194(f) (1978). The United States Trademark Trial and Appeal Board adopted the "lawful use in commerce" doctrine and has consistently held that the shipment of goods in violation of a federal statute, including the Food, Drug and Cosmetic Act ("FD & C Act"), may not be recognized as the basis for registering a federal trademark. Clorox Co. v. Armour-Dial, Inc., 214 U.S.P.Q. 850 (1982) (citing In re Stellar International, Inc., 159 U.S.P.Q. 48 (T.T.A.B.1968); Clairol, Inc. v. Holland Hall Products, Inc., 165 U.S.P.Q. 214, 218 (T.T.A.B.1970)).[1] In proceedings before the Board where the *40 product of the applicant seeking registration is allegedly marketed or shipped in violation of applicable law, the party challenging the applicant's registration has the burden of proving the facts which compel denial or cancellation of the federal registration. Kellogg Co. v. New Generation Foods, Inc., 6 U.S.P.Q.2d 2045 (1988). The Board has stated that in trying to determine whether the use of a mark is lawful under a certain regulatory act, a use can be held unlawful only when the "issue of compliance has previously been determined (with a finding of non-compliance) by a court or government agency having competent jurisdiction under the statute involved," or where there has been a per se violation of a statute regulating the sale of a party's goods. Id. (citing Satinine Societa v. P.A.B. Produits, 209 U.S.P.Q. 958 (T.T.A.B.1981)). Because the Supreme Court of Puerto Rico has given persuasive weight to United States jurisprudence on trademark laws, see Garriga Trading Co., Inc. v. Century Packing Corp., 107 D.P.R. 519, 522 (1973), we adopt the Trademark Board's approach in determining "unlawful use" under the applicable provision of the Puerto Rico Code. In the instant case, American claims that the plaintiff cannot allege trademark infringement and seek the protection of the trademark laws because it is marketing its product "SUPRA" in violation of certain provisions in the Food, Drug and Cosmetic Act, 21 U.S.C. § 321, et seq. (FD & C Act), and the regulations issued pursuant thereto, 21 C.F.R. § 201.10, et seq. If the product is being marketed in violation of these laws, plaintiff's use of the trademark is unlawful and cannot be the basis upon which to enforce its rights as trademark owner and senior user of the mark. Therefore, its action must be dismissed. We agree with the defendant. In spite of the fact that the product "SUPRA" is only marketed in Puerto Rico, the FDA's jurisdiction under the interstate commerce provision of the FD & C Act extends to "SUPRA" since the product has moved in interstate commerce — the product is manufactured in Ohio and sold in Puerto Rico. See United States v. Dianovin Pharmaceutical, Inc., 475 F.2d 100 (1st Cir.1973), cert denied, 414 U.S. 830, 94 S.Ct. 60, 38 L.Ed.2d 65 (1973). Thus, "SUPRA" must comply with the requirements set forth in the FD & C Act and its relevant regulations. A. The Labeling of "SUPRA" The FD & C Act establishes the framework for controlling the marketing and labeling of pharmaceutical products, which are regulated by the FDA. The Act governs the content of the labeling of drugs. Section 331(a) and (b) of Title 21 U.S.C. prohibit "the introduction or delivery for introduction into interstate commerce of any food, drug, device, or cosmetic that is ... misbranded ... [and the] misbranding of any food, drug, device, or cosmetic in interstate commerce...." Section 352 of the statute defines when a drug or device shall be deemed misbranded. The defendant claims that the plaintiff's product "SUPRA" was misbranded at the time its label was filed with the trademark registration office in Puerto Rico, and is misbranded as it is currently being distributed. As stated earlier, the Puerto Rico trademark statute directs that no trademark registration shall be issued if it has been used unlawfully prior to the date of the registration. Therefore, we will look to the labeling of "SUPRA" when the plaintiff filed its application with the Secretary of State. American argues that the label as filed with the trademark office violates several provisions of the FD & C Act and several FDA regulations. The first alleged violation is that the established name, yohimbine hydrochloride, does not appear in typesize at least half as large as typesize in which the proprietary name appears, in violation of 21 U.S.C. § 352(e)(1)(B). Plaintiff has accepted that the typesize used for "Yohimbine Chloride" on the label should have been increased in order to be in full compliance with the statute. Plaintiff's Reply to Summary Judgment at 9. Plaintiff has also admitted that the established chemical name does not appear in direct *41 conjunction with the proprietary name SUPRA and the relationship between the two is not made clear by use of a phrase such as "brand of" or the use of brackets, as required by 21 C.F.R. § 201.10(g)(1), and that the label does not bear as one of its principal features a statement of identity of the drug yohimbine hydrochloride. It further concedes that the label does not comply with the prominence standards, as required by 21 C.F.R. § 201.50. Id. at 9-10. In 1962, Congress amended the FD & C Act to require the manufacturers of prescription drugs to print the established name of the drug prominently and in type at least half as large as that used for the proprietary name. The Supreme Court has noted that the underlying purpose of this amendment was to bring to the attention of doctors and patients the fact that many of the drugs sold under familiar trade names are actually identical to drugs sold under their "established" or unfamiliar trade names at significantly lower prices. Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681, 685 (1967). Therefore, we disagree with plaintiff's statement that its admitted violation of FD & C Act and the regulations directly related to the prominence and established name provision of the FD & C Act are "mere labeling deviation[s]" which are not serious enough to violate the statute on its face. Although the "SUPRA" label may contain all the information required under the Act, Congress specifically amended the statute so that the appearance of the label, which may contain the necessary information, be visually designed in a certain way in order to protect consumers (doctors and patients) who may pay more because they do not realize the product they are buying is a well-known drug which they could purchase for a cheaper price. Thus, plaintiff's labeling, as filed with the Puerto Rico Secretary of State when it applied to register for a trademark, failed to comply with these requirements of the statute and clearly violated the statute on its face, insofar as it has directly violated 21 U.S.C. § 352(e) (Supp.1989). Moreover, its admitted violations of the applicable regulations concerning typesize and placement of information, are not de minimis, and constitute a sufficient basis, in conjunction with its per se violation of the FD & C Act, upon which to conclude that its use in commerce was unlawful prior to its registering the trademark. See In re Pepcom Industries, Inc., 192 U.S.P.Q. 400, 401 (T.T.A.B.1976) (use of mark is lawful only when product complied with applicable laws and regulations). B. Failure to Register The defendant further alleges that plaintiff failed to register as a drug establishment with the FDA when it first used the trademark in 1986, as required by section 510(c) of the Act, 21 U.S.C. § 360(c), and was therefore misbranded under 21 U.S.C. § 352(o).[2] According to the defendant, the plaintiff also failed to submit the mandatory drug listing form to FDA until April of 1990, several years after the time of the claimed first use of the trademark "SUPRA" in 1986, in violation of section 510(j) of the statute, 21 U.S.C. § 360(j). The FD & C Act requires every manufacturer and distributor of a drug product, "upon engaging in the manufacture, preparation, propagation ... of a drug or drugs" to register its establishment with the FDA. 21 U.S.C. § 360(c). This section of the statute further provides that every manufacturer and distributor of a drug produced "shall [on or before December 31 of each year] register with the Secretary his name, places of business, and all such establishments." 21 U.S.C. § 360(b). Also, any such registered person under section 510(b) or (c) shall at the time of registration, file a list of all drugs which are being manufactured, prepared, compounded or processed by him for commercial distribution which have not been included in any list of drugs *42 filed with the Secretary before such time of registration. In this case, Erva had failed to register pursuant to section 510(j) of the statute when it filed its application for registration in 1986; it first complied with this statutory requisite of filing a drug listing form for "SUPRA" in April of 1990, four years after its claimed first use of the trademark "SUPRA", and after the initiation of this lawsuit. See Plaintiff's Memorandum filed January 9, 1991, Exhibits B. According to section 502(o) of the statute then, "SUPRA" is a misbranded drug since it was not included in a list as required by section 360(j). Thus, this per se violation of the FD & C Act constitutes a separate basis upon which we conclude that at the time it registered its trademark in Puerto Rico, plaintiff's product "SUPRA" was not "lawfully used" according to the applicable statute. Plaintiff cannot therefore claim priority of use. C. New Drug Status of "SUPRA" Defendant also claims that there is no approved new drug application ("NDA") for "SUPRA" or for any other product containing yohimbine hydrochloride as its active ingredient. See 21 U.S.C. §§ 331(d), 355(a), (b). Because we have decided that plaintiff's mislabeling of its product constitutes a per se violation of the FD & C Act as well as a violation of applicable regulations, thus vitiating its claim of priority of use, we need not address whether plaintiff's product was legally marketed without an NDA issued by the FDA.[3] IV. CONCLUSION Wherefore, in view of the foregoing, defendant's motion for summary judgment is GRANTED, and plaintiff's partial motion for summary judgment is DENIED. Accordingly, plaintiff's complaint is hereby DISMISSED. We note that the defendant is not entitled to cancellation of registered mark; according to Puerto Rico law, in order to cancel mark, a party claiming to be injured must request cancellation from the Secretary. 10 L.P.R.A. § 200. Because genuine issues of material fact exist which relate to defendant's counterclaim, these issues shall be tried to the Court on the date scheduled for trial, January 28, 1991. IT IS SO ORDERED. NOTES [1] For a history of the evolution of this doctrine from the common law doctrine of "unclean hands," see generally Cooper, Unclean Hands and the Unlawful Use in Commerce: Trademarks Adrift on the Regulatory Tide, 71 Trademark Rep. 38 (1981). [2] This provision of the statute defines a drug as misbranded if "it was manufactured, prepared, propagated, compounded or processed in an establishment in any State not duly registered under section 360 of this title, [or] if it was not included in a list required by section 360(j) of this title...." [3] The FDA has filed a Motion to Quash the subpoena served on its employee, Mr. Richard Dent. As the Court has decided that the plaintiff's product "SUPRA" has been mislabeled on grounds separate from the issue of the NDA, we deem this motion moot. Moreover, we note that pursuant to 21 C.F.R. § 20.1(b), "Testimony by Food and Drug Administration employees," the Commissioner has not authorized Mr. Dent to give testimony in this case.

NO. 07-09-0341-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL C NOVEMBER 5, 2009 ______________________________ In re: JOSEPH H. NORTON, Relator _________________________________ On Original Proceeding for Writ of Mandamus _______________________________ Before QUINN, C.J., and HANCOCK and PIRTLE, JJ. Pending before the court is the petition for writ of mandamus of Joseph H. Norton.  Through it, he seeks an order directing the Honorable Ron Enns, 69 th Judicial District, to act upon two motions allegedly pending before that court.  One of the motions involves the appointment of legal counsel to pursue a request for DNA testing.  The other motion concerns his counsel’s request to withdraw.  Apparently, the trial court had appointed Norton legal counsel at one time or another.  Because that attorney moved to withdraw, Norton allegedly requested that he be granted another attorney.  We deny the petition for several reasons. First, Norton has not paid the requisite $125 filing fee despite our previous directive to do so by November 2, 2009.  Nor has he tendered an affidavit of indigence illustrating that he is impoverished and, therefore, unable to pay the fee.   Nor has Norton attached to his petition either motion in question.  Texas Rule of Appellate Procedure 52.3(k) mandates that the relator include, in an appendix, the document or documents “showing the matter complained of.”  The alleged motions to withdraw and for the appointment of new counsel would fall within that category.   Similarly omitted is any certification by Norton indicating that every factual statement in the petition is supported by competent evidence included in the appendix or record.  Such is required by Texas Rule of Appellate Procedure 52.3(j). Accordingly, the petition for writ of mandamus is denied. Brian Quinn          Chief Justice

19 F.3d 9 Julienv.INS NO. 93-4010 United States Court of Appeals,Second Circuit. Feb 17, 1994 1 Appeal From: I.N.S. 2 AFFIRMED.

563 F.3d 1042 (2009) George Edward FARMER, Petitioner-Appellant, v. George H. BALDWIN, Respondent-Appellee. No. 06-35635. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 1, 2007. Submission Withdrawn August 15, 2007. Resubmitted March 30, 2009. Filed April 29, 2009. *1043 Lisa Hay, Assistant Federal Public Defender, Portland, OR, for the petitioner-appellant. Erin C. Lagesen, Assistant Attorney General, Salem, OR, for the respondent-appellee. Before ALFRED T. GOODWIN, STEPHEN REINHARDT and MILAN D. SMITH, JR., Circuit Judges. OPINION GOODWIN, Circuit Judge: After hearing oral argument in this case, we submitted a certified question to the Oregon Supreme Court. See Farmer v. Baldwin, 497 F.3d 1050 (9th Cir.2007) (order). On March 26, 2009, the Oregon Supreme Court answered the certified question. Farmer v. Baldwin, 346 Or. 67, 205 P.3d 871 (2009). In light of the Oregon Supreme Court's answer, we reverse the judgment dismissing the petition, and remand for further proceedings. Because the factual and procedural history of this case is detailed in our certification order, Farmer, 497 F.3d at 1052-53, we briefly summarize it here. George Edward Farmer ("Farmer") appealed the district court's dismissal of his petition for a writ of habeas corpus under 28 U.S.C. § 2254, arising from his conviction in Oregon state court on one count of murder. The district court held that Farmer had failed to exhaust his federal claims because he did not "fairly present" them to the Oregon Supreme Court during his state post-conviction relief proceedings, and that federal habeas review was therefore unavailable under the Antiterrorism and Effective Death Penalty Act of 1996. The district court further determined that Farmer's claims were untimely under Oregon's procedural rules and were therefore procedurally defaulted for purposes of federal habeas review. It also determined that Farmer failed to show cause and prejudice necessary to cure this procedural default, and dismissed his petition. On appeal, Farmer argued that he had complied with Oregon procedural rules and fairly presented his federal claims to the Oregon Supreme Court by filing a petition for review that referred to a copy of the brief he had filed with the Oregon Court of Appeals in his post-conviction relief proceedings. He alleged that his appellate brief substantially complied with the procedures set out in State v. Balfour, 311 Or. 434, 814 P.2d 1069 (1991), and that Oregon law did not bar him from incorporating by reference his appellate brief into his petition for review. We determined that Farmer's argument raised an important and unresolved issue of Oregon law, and certified the following question to the Oregon Supreme Court: *1044 Whether, under its rules or practice, the Oregon Supreme Court would deem a federal question not properly raised before it, when that question has been presented by means of an attachment to a Balfour brief filed in the Court of Appeals, and the attachment served as (but was not labeled as) Section B of said brief, and the petitioner specifically states in his petition to the Supreme Court that his reasons for seeking review are set forth in the Balfour brief. Farmer, 497 F.3d at 1055-56. The Oregon Supreme Court answered: Under ORAP 5.90, a petitioner may present a question of law to this court by means of an attachment to a Balfour brief filed in the Court of Appeals, when the attachment serves as Section B of said brief, and the petitioner incorporates that same brief by reference into his petition for review. Farmer, 346 Or. at 81, 205 P.3d 871. The Oregon Supreme Court further stated that Farmer's "petition for review complied with the appellate rules" and his "incorporation by reference of arguments from his appellate brief is a permissible method of raising an issue in [the Oregon Supreme Court]." Id. at 79-80, 81, 205 P.3d 871. In light of the Oregon Supreme Court's answer to the certified question, we hold that the district court erred in ruling that Farmer had not fairly presented his federal claims and was therefore barred from seeking federal habeas review. Therefore, we reverse the district court's judgment and remand with instructions that it consider Farmer's petition for a writ of habeas corpus ripe for review on the merits. REVERSED AND REMANDED.

542 N.W.2d 671 (1996) Maria Kristina HERNANDEZ, a minor, by Maria HERNANDEZ, her mother and guardian ad litem, Appellant, v. RENVILLE PUBLIC SCHOOL DISTRICT NO. 654, Defendant, Tri-Valley Opportunity Council, Inc., Respondent, West Central Migrants, Inc., Defendant. No. C4-95-1396. Court of Appeals of Minnesota. January 30, 1996. Review Denied March 28, 1996. *672 Thomas G. Johnson and Bradley J. Schmidt, Schmidt, Thompson, Johnson & Moody, P.A., Willmar, for Appellant. John F. Angell and Leo I. Brisbois, Stich, Angell, Kreidler, Brownson & Ballou, P.S., Minneapolis, for Respondent. Considered and decided by HUSPENI, P.J., and SCHUMACHER and FOLEY[*], JJ. OPINION FOLEY, Judge.[*] Appellant Maria Kristina Hernandez sued respondent Tri-Valley Opportunity Council, Inc. (Tri-Valley) for injuries suffered when she fell from a piece of playground equipment. The jury concluded that Tri-Valley was not negligent, but found that Hernandez suffered past and future damages of $11,702.60. The district court denied Hernandez's motion for a new trial and this appeal followed. FACTS This appeal arises from a suit for damages incurred by Hernandez when she broke her arm after falling from a piece of playground equipment. Four-year-old Hernandez was one of 20 students participating in a summer preschool program operated by Tri-Valley at the Renville High School. The playground equipment at the school included a horizontal ladder, also known as "monkey bars." Due to safety concerns, Tri-Valley determined that the monkey bars were inappropriate for the children participating in the preschool program. Tri-Valley instructed the children at the beginning of the summer session and *673 nearly every day thereafter that they were not to use the monkey bars. On the day that Hernandez was injured, the preschool children were in a line outside the school, preparing to return inside after recess. The students were supervised during recess by three Tri-Valley employees, one teacher and two assistants. When the children lined up outside the school, one of the assistants was at the back of the line and the other was in the middle of the line. The teacher entered the school for less than one minute to retrieve two students who went inside to get a drink of water. When the teacher came back out, Hernandez had fallen from the monkey bars. Hernandez had been waiting with the other children to enter the school when she left the line, climbed the monkey bars, and fell. Hernandez suffered a broken arm, requiring surgery and further medical attention. Hernandez sued respondent Tri-Valley, Renville Public School District No. 654, and West Central Migrants, Inc. for past and future damages related to her broken arm. By special verdict, the jury found that none of the defendants were negligent, but that Hernandez suffered damages of $11,702.60. The district court denied Hernandez' motion for judgment notwithstanding the verdict and a new trial. Hernandez appeals the district court's denial of her motion for a new trial only with regard to Tri-Valley.[1] ISSUES I. Is a new trial required because the district court instructed the jury that "there is no requirement of constant supervision of all of the movement of all pupils at all times"? II. Is the evidence insufficient to support the jury's special verdict finding that Tri-Valley was not negligent? III. Were the damages found by the jury inadequate? ANALYSIS I. District courts are allowed considerable latitude in selecting the language in jury instructions, and this court will not reverse the district court unless the instructions constituted an abuse of discretion. Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986). Where jury instructions fairly and correctly state the applicable law, this court will not grant a new trial. Alevizos v. Metropolitan Airports Comm'n, 452 N.W.2d 492, 501 (Minn.App.1990), review denied (Minn. May 11, 1990). The district court instructed the jury that Tri-Valley and its teachers had an obligation to use ordinary care and to protect its students from injuries which could reasonably have been foreseen and could have been prevented by the use of ordinary care. However, there is no requirement of constant supervision of all of the movement of all pupils at all times. Hernandez argues that the district erred by instructing the jury, in the last sentence of the quoted instruction, that Tri-Valley did not have to supervise each student at all times. The jury instruction given by the district court closely resembles the instruction given in Sheehan v. St. Peter's Catholic Sch., 291 Minn. 1, 3, 188 N.W.2d 868, 870 (1971).[2] Hernandez argues that because the court in Sheehan did not decide the propriety of the jury instruction, Sheehan does not authorize the use of the instruction in this case. We disagree. In Raleigh v. Independent Sch. Dist. No. 625, 275 N.W.2d 572, 574-75 (Minn. 1978), however, the supreme court explained that it had "implicitly approved the trial court's use of the * * * instruction" in Sheehan. Further, in Verhel v. Independent Sch. Dist. No. 709, the supreme court used the language of the Sheehan jury instruction when articulating a school district's legal duty to protect its students: *674 Where a school district has [a duty to supervise students], that duty is to "use ordinary care and to protect its students from injury resulting from the conduct of other students under circumstances where such conduct would reasonably have been foreseen and could have been prevented by the use of ordinary care. There is no requirement of constant supervision of all the movements of pupils at all times." 359 N.W.2d 579, 586 (Minn.1984) (quoting Sheehan, 291 Minn. at 3, 188 N.W.2d at 870). Hernandez argues that under the ordinary care standard, it may be appropriate for a school to provide uninterrupted supervision of children, especially when the children are only four years old. We agree that in a negligent supervision case involving very young children it is preferable to avoid the instruction that a school has no duty to supervise all children at all times. The better practice may be to instruct the jury that the school must exercise ordinary care to protect students from foreseeable injuries. Despite our reservations regarding the challenged language in the jury instruction, we conclude that the challenged instruction fairly and correctly states the law, and the district court did not abuse its discretion. A new trial, therefore, is not warranted. II. Hernandez argues that the evidence does not support the jury's special verdict answer that Tri-Valley was not negligent. A reviewing court will not set aside a jury's answers to special verdict questions unless the answers are "perverse and palpably contrary to the evidence." Hanks v. Hubbard Broadcasting, 493 N.W.2d 302, 309 (Minn.App.1992) (citations omitted), review denied (Minn. Feb. 12, 1993). The reviewing court must view the evidence in the light most favorable to the verdict, and "[i]f the jury's special verdict finding can be reconciled on any theory, the verdict will not be disturbed." Id. A school is negligent if it fails to exercise ordinary or reasonable care toward its students. Fallin v. Maplewood-North St. Paul Dist. 622, 362 N.W.2d 318, 321 (Minn. 1985). The evidence must show "that supervision would probably have prevented the accident." Verhel, 359 N.W.2d at 586 (quoting Sheehan, 291 Minn. at 5, 188 N.W.2d at 871). However, [a] teacher, generally, is not required to anticipate the hundreds of unexpected student acts which occur daily or to guard against dangers inherent in rash student acts. Id. The evidence supports the jury's special verdict answer that Tri-Valley was not negligent. The record contains no evidence that supervision probably would have prevented the accident. To the contrary, the evidence shows that the accident occurred despite the presence of two supervisors on the playground. The evidence also shows that the accident resulted from the type of unexpected student act that teachers are not required to anticipate. Although there had never been any problems or injuries involving the monkey bars in the past, Tri-Valley repeatedly instructed the students, including Hernandez, not to climb or to play on the monkey bars. While the students were lined up waiting to reenter the school after recess, Hernandez left the line, climbed up the monkey bars, and fell to the ground. The jury's conclusion regarding Tri-Valley's negligence was not perverse or palpably contrary to the evidence. Further, the jury's conclusion can be reconciled on the theory that Hernandez's actions were unexpected, rash student behavior of the type teachers are not required to anticipate. The district court did not err by denying Hernandez's motion for a new trial. III. Hernandez argues that a new trial is necessary because the damages determined by the jury were inadequate. The jury awarded $11,702.60 in damages for past and future medical expenses, pain, disability, disfigurement, embarrassment, and emotional distress. A district court may grant a new trial if the damages are insufficient, "appearing to have been given under the influence of *675 passion or prejudice." Minn.R.Civ.P. 59.01(e). But if a jury's conclusion that a defendant is not liable is supported by credible evidence, the jury's determination of inadequate damages to a plaintiff does not warrant a new trial. Wefel v. Norman, 296 Minn. 506, 508, 207 N.W.2d 340, 341 (1973); Radloff v. Jans, 428 N.W.2d 112, 115-16 (Minn.App.1988), review denied (Minn. Oct. 26, 1988). Because the jury determined that Tri-Valley was not liable for Hernandez's injuries and because the jury's decision is supported by credible evidence, a new trial is not warranted. DECISION The district court did not err by denying Hernandez's motion for a new trial. Affirmed. NOTES [*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 2. [1] By special term orders dated October 17, 1995 and October 30, 1995, this court dismissed West Central Migrants, Inc. and Renville Public School District No. 654 from this appeal. [2] The instruction in Sheehan included the following: "There is no requirement of constant supervision of all the movements of pupils at all times." 291 Minn. at 3, 188 N.W.2d at 870.

47 F.3d 431 Intermarine U.S.A.v.Intermarine* NO. 94-8029 United States Court of Appeals,Eleventh Circuit. Feb 02, 1995 Appeal From: S.D.Ga., No. 93-00022-CV-4 1 AFFIRMED. * Fed.R.App.P. 34(a); 11th Cir.R. 34-3

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4348 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. DENNIS RAY HOWARD, a/k/a D, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, Chief District Judge. (5:12-cr-00009-D-1) Submitted: January 19, 2016 Decided: February 3, 2016 Before MOTZ and DIAZ, Circuit Judges, and DAVIS, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Joshua B. Howard, GAMMON, HOWARD & ZESZOTARSKI, PLLC, Raleigh, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Yvonne V. Watford-McKinney, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: A federal jury convicted Dennis Ray Howard of conspiracy to distribute and possess with intent to distribute phencyclidine (“PCP”), in violation of 21 U.S.C. § 846 (2012); nine counts of distribution of PCP, in violation of 21 U.S.C. § 841(a) (2012); and possession of a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c) (2012). The district court originally sentenced Howard to life imprisonment plus a consecutive mandatory minimum sentence of 60 months of imprisonment for the firearm count. Howard appealed and we affirmed the convictions, but vacated the sentence and remanded for resentencing, finding that the sentence was substantively unreasonable. See United States v. Howard, 773 F.3d 519 (4th Cir. 2014). Upon resentencing, the court sentenced Howard to 175 months of imprisonment for the drug convictions, plus the consecutive statutory mandatory minimum of 60 months for the firearm conviction. Howard again appeals, arguing that the sentence is substantively unreasonable. Finding no error, we affirm. We review a sentence for abuse of discretion, determining whether the sentence is procedurally and substantively reasonable. United States v. Heath, 559 F.3d 263, 266 (4th Cir. 2009). “If no procedural error was committed, [we] can only vacate a sentence if it was substantively unreasonable in light 2 of all relevant facts.” Id. (internal quotation marks omitted); see also United States v. Evans, 526 F.3d 155, 160 (4th Cir. 2008) (“[A]n appellate court must defer to the trial court and can reverse a sentence only if it is unreasonable, even if the sentence would not have been the choice of the appellate court.”). We have thoroughly reviewed the record and conclude that the sentence is substantively reasonable. Accordingly, we affirm the judgment of the district court. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 3 

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA BRANCH BANKING AND TRUST COMPANY, Plaintiff, v. Civil Action No. 13-510 (JEB) JAMES W. RAPPAPORT, et al., Defendants. MEMORANDUM OPINION This case concerns two loans that Plaintiff Branch Banking and Trust Company issued to six different companies affiliated with Specialty Hospitals of America, LLC. Defendants James Rappaport and Robert Rummler, respectively the Chairman and CEO of SHA, personally guaranteed both loans up to certain caps for principal as well as interest and fees. Upon the various borrowers’ defaults, BB&T brought this suit seeking payment from Defendants on the guarantees. BB&T now moves for summary judgment, arguing that Defendants’ liability and the amounts they owe are not in dispute. As Defendants largely conceded at the Motion hearing the propriety of partial summary judgment as to the principal owed – instead contesting only the interest and fees – and Plaintiff agreed to such resolution, the Court will grant the Motion in part and deny it in part. I. Background Viewing the facts, which Defendants “take no issue with,” see Opp. at 3, in the light most favorable to Defendants, on March 28, 2008, six organizations associated with SHA (“Borrowers”) took out a $7,500,000 line of credit (“the Revolving Note”) with BB&T, which 1 was later increased to $10,500,000. See Mot., Affidavit of Regina Barry, ¶ 4. The terms of this loan, including the rate of interest, were modified several times. Id., ¶ 5. Of relevance here, Borrowers agreed to make monthly payments of accrued interest beginning on May 1, 2008, through December 31, 2011, at which point all amounts remaining, including the principal, would become immediately due. Id., ¶ 7. Borrowers additionally agreed to pay late charges of 5% of the overdue amount and “all costs and expenses incurred by BB&T in connection with collecting or attempting to collect” the sums due under the Note. Id., ¶¶ 8-9. Borrowers, however, did not pay off the Revolving Note at the date of maturity, December 31, 2011. Id., ¶ 10. As of September 9, 2013, Borrowers owed $6,681,643.61 in principal and $537,223.35 in interest on this Note. See Reply, Supplemental Affidavit of Regina Barry, ¶ 4. Borrowers also took out a $35,000,000 loan from BB&T (“the Term Note”) with specified interest and other conditions. See Barry Aff., ¶ 13. On this loan, they agreed to make monthly payments beginning on May 1, 2008, through April 1, 2015. Id., ¶ 16. The Term Note also contained an acceleration provision in the event of default, whereby BB&T could accelerate and declare immediately due and payable all amounts owed under the Term Note. Id., ¶ 21. Borrowers failed to make payment under the Term Note, and BB&T exercised its acceleration rights. Id., ¶¶ 20-21. As of September 9, 2013, Borrowers owed $28,127,952.81 in principal and $1,609,380.07 in interest on this Note. See Supp. Barry Aff., ¶ 4. Defendants Rappaport and Rummler guaranteed both Notes. See Barry Aff., ¶ 23. Rappaport’s guarantee, however, “is limited to $6,000,000.00 plus any and all accrued and unpaid interest, fees, charges and costs . . . not to exceed $1,000,000.00.” Id., ¶ 25. Rummler’s guarantee “is limited to $2,000,000.00 plus any and all accrued and unpaid interest, fees, charges and costs . . . not to exceed $1,000,000.00.” Id., ¶ 26. 2  BB&T entered into a forbearance agreement with Defendants on May 31, 2012, pursuant to which they were required to pay $2,000,000 to BB&T by July 20, 2012. Id., ¶¶ 27-29. They did not make this payment. Id., ¶ 30. Fed up, on April 15, 2013, BB&T filed this action against Defendants, seeking the $10,000,000 they had personally guaranteed. Plaintiff has now moved for summary judgment. After the parties submitted their briefs, the Court held a hearing on the Motion on October 11. II. Legal Standard Summary judgment may be granted if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). Summary judgment may be rendered on a “claim or defense . . . or [a] part of each claim or defense.” Fed. R. Civ. P. 56(a). “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record.” Fed. R. Civ. P. 56(c)(1)(A). “A fact is ‘material’ if a dispute over it might affect the outcome of a suit under the governing law; factual disputes that are ‘irrelevant or unnecessary’ do not affect the summary judgment determination.” Holcomb, 433 F.3d at 895 (quoting Liberty Lobby, Inc., 477 U.S. at 248). An issue is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See id. The party seeking summary judgment “bears the heavy burden of establishing that the merits of his case are so clear that expedited action is justified.” Taxpayers Watchdog, Inc., v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987). “Until a movant has met its burden, the opponent of a summary judgment motion is under no obligation to present any evidence.” Gray v. Greyhound Lines, East, 545 F.2d 169, 174 (D.C. Cir. 1976). 3  When a motion for summary judgment is under consideration, “the evidence of the non- movant[s] is to be believed, and all justifiable inferences are to be drawn in [their] favor.” Liberty Lobby, Inc., 477 U.S. at 255; see also Mastro v. Potomac Elec. Power Co., 447 F.3d 843, 850 (D.C. Cir. 2006); Aka v. Washington Hospital Center, 156 F.3d 1284, 1288 (D.C. Cir. 1998) (en banc); Washington Post Co. v. U.S. Dep’t of Health and Human Services, 865 F.2d 320, 325 (D.C. Cir. 1989). On a motion for summary judgment, the Court must “eschew making credibility determinations or weighing the evidence.” Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007). The nonmoving party’s opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits, declarations, or other competent evidence, setting forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). He is required to provide evidence that would permit a reasonable jury to find in his favor. Laningham v. United States Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987). If the nonmovants’ evidence is “merely colorable” or “not significantly probative,” summary judgment may be granted. Liberty Lobby, Inc., 477 U.S. at 249-50; see Scott v. Harris, 550 U.S. 372, 380 (2007) (“Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is ‘no genuine issue for trial.’”) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). III. Analysis In moving for summary judgment, BB&T argues it is undisputed that Defendants guaranteed the loans and that they now owe the money. Defendants counter with two arguments: First, the District of Columbia’s takeover of United Medical Nursing Center may somehow 4 reduce the amount of principal due. Second, BB&T has not properly itemized the interest and fees due. The Court will address each in turn. A. UMNC Takeover While not contesting the validity of the guarantees or the amount of principal owed, Defendants contend that the takeover of UMNC – an SHA subsidiary – by the District of Columbia’s Not-for-Profit Hospital Corporation could yield an offset because BB&T may have received funds from the NFPHC. As discussed earlier, SHA-affiliated corporations owe over $34 million in principal plus over $2 million in interest and fees. Defendants have guaranteed up to $8 million in principal and up to $2 million in interest and fees. If the amount guaranteed is less than the amount still owed, the UMNC takeover is irrelevant as an offset. BB&T, therefore, must have received over $26 million – i.e., the difference between the full amounts owed and those guaranteed – from the District’s NFPHC. Yet, Defendants’ counsel admitted at the October 11th hearing that any offset from the UMNC takeover would not even approach that sum. The takeover thus has no effect on the current Motion. To the extent that Defendants’ counsel attempted to proffer additional facts to the Court at the hearing on other potential offsets, a summary judgment hearing is neither the time nor the place for such factual supplementation, particularly via attorney proffer. See Fed. R. Civ. P. 56(c) (party must “cit[e] to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . , admissions, interrogatory answers, or other materials” to support its factual positions) (emphasis added). As the parties agree that the UMNC takeover does not reduce the maximum amount of principal Defendants guaranteed, the Court will grant summary judgment as to the principal owed. 5  B. Itemized Interest At the hearing, in conceding that partial summary judgment was proper as to the principal, Defendants reiterated the position in their briefs that judgment should not be entered as to the interest owed without “an itemized statement or other document detailing the amounts properly payable under” the guarantees. See Opp. at 3, 7-8. While the Court is aware of some cases in which judgment has been entered concerning interest based only on the bare assertions of an affiant as to the amount due, see, e.g., Branch Banking & Trust Co. v. Broaderip, No. 10- 00289, 2011 WL 3511774 (S.D. Ala. Aug. 11, 2011), the Court need not follow that course. As Plaintiff’s counsel at the hearing agreed to partial summary judgment on the principal with the opportunity to file a subsequent motion with more supporting documentation on the interest, this is the result that should obtain here. IV. Conclusion For the foregoing reasons, the Court will grant in part, and deny in part BB&T’s Motion for Summary Judgment. A separate Order consistent with this Opinion will be issued this day. /s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: October 16, 2013 6 

NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted May 28, 2020 * 0F Decided June 8, 2020 Before FRANK H. EASTERBROOK, Circuit Judge DIANE S. SYKES, Circuit Judge AMY J. ST. EVE, Circuit Judge No. 19-2571 ANDRE V. POWELL, Appeal from the United States District Petitioner-Appellant, Court for the Northern District of Indiana, South Bend Division. v. No. 3:19-CV-297-RLM-MGG JOHN GALIPEAU, Robert L. Miller, Jr., Respondent-Appellee. Judge. ORDER Andre Powell petitioned for a writ of habeas corpus challenging the revocation of his placement in a community re-entry program without notice or a hearing. The district court denied the petition and Powell appealed. Because Powell has since been released from prison, a live controversy no longer exists and we therefore vacate and remand to the district court with instructions to dismiss the case as moot. * We have agreed to decide this case without oral argument because the briefs and record adequately present the facts and legal arguments, and oral argument would not significantly aid the court. FED. R. APP. P. 34(a)(2)(C). No. 19-2571 Page 2 In 2013 Powell was convicted of Class B felony burglary and sentenced to 18 years’ incarceration. While serving his sentence, Powell was placed in a work-release program at the South Bend Community Re-Entry Center and assigned to jobs with the Indiana Department of Natural Resources and the South Bend Cubs, a minor league baseball team. But after several infractions (Powell was caught stealing from both the Cubs and the Re-Entry Center, and he failed to show up for work at the Department of Natural Resources), the Indiana Department of Correction revoked his placement in the work-release program and transferred him to Westville Correctional Facility. Only after the transfer did Powell receive any kind of a hearing. In his petition under 28 U.S.C. § 2241, Powell asserted that his transfer to Westville without prior notice or a hearing violated due process, and that his transfer violated his equal protection rights because he was sanctioned more severely than similarly situated offenders. The district court denied the petition, concluding that Powell had no constitutional liberty or property interest in a work-release program and, as a result, he was not entitled to due process before his transfer. And even if he had been entitled to due process, his claim would not be cognizable in habeas corpus because the revocation of his placement did not alter the fact or duration of his confinement. On appeal Powell challenges the district court’s determination that habeas corpus was not the correct means by which to contest his transfer. The parties, at our direction, filed jurisdictional statements addressing whether this appeal should be dismissed as moot in light of information from the warden that Powell since has been transferred into a community-transition program and soon would be released from prison. Our jurisdiction is limited to live “cases and controversies.” U.S. Const. Art. III, § 2; see United States v. Munsingwear, Inc., 340 U.S. 36 (1950); Auto Driveaway Franchise Systems, LLC v. Auto Driveaway Richmond, LLC, 928 F.3d 670, 674 (7th Cir. 2019). A petition for a writ of habeas corpus becomes moot after a petitioner is released from custody unless the petitioner will suffer sufficient collateral consequences from the feature of his custody that he is challenging. See Spencer v. Kemna, 523 U.S. 1, 7–14 (1998); Lane v. Williams, 455 U.S. 624 (1982); Tara Gold Res. Corp. v. S.E.C., 678 F.3d 557, 559 (7th Cir. 2012). Although we presume that a criminal conviction has collateral consequences, we do not extend that presumption with respect to prison disciplinary proceedings. Spencer, 523 U.S. at 7–16; Eichwedel v. Curry, 700 F.3d 275, 279 (7th Cir. 2012) (collecting cases). No. 19-2571 Page 3 The parties’ submissions confirm that the case is moot. Powell has been released from Westville. According to the Indiana Department of Correction’s website, Powell was released from the facility on February 21, 2020, and “[r]eturned to court authority on release.” Offender Data: Andre Powell, IND. DEP’T OF CORRECTION, https://www.in.gov/ apps/indcorrection/ofs/ofs?previous_page=1&detail=951140 (last visited May 20, 2020). On March 4 Powell filed notice of a change of address from Elkhart County Work Release to the Faith Mission in Elkhart. See Powell v. Galipeau, No. 19-2571 Doc. 19 (7th Cir.). Powell’s departure from Westville means that he cannot “obtain ‘any 1F potential benefit’ from a favorable decision.” Pope v. Perdue, 889 F.3d 410, 414 (7th Cir. 2018) (quoting United States v. Trotter, 270 F.3d 1150, 1152 (7th Cir. 2001)). Powell already has received the relief he sought—his release from Westville—and there is no further relief that the facility can provide him. Further, Powell does not identify, let alone establish, any potential collateral consequences to the revocation of his work- release. See Spencer v. Kemna, 523 U.S. 1, 7–14 (1998); Lane v. Williams, 455 U.S. 624 (1982); Tara Gold Res. Corp. v. S.E.C., 678 F.3d 557, 559 (7th Cir. 2012). To the extent he wishes to raise a constitutional challenge to his transfer to a new facility, he must bring an action under 42 U.S.C. § 1983 or another statute authorizing damages or injunctions. Isby v. Brown, 856 F.3d 508 (7th Cir. 2017). We VACATE the judgment and REMAND with instructions to dismiss the litigation as moot. 

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT July 15, 2016 _________________________________ Elisabeth A. Shumaker Clerk of Court LAZARO AGUILAR, Plaintiff - Appellant, No. 16-1135 v. (D.C. No. 1:15-CV-01481-LTB) (D. Colorado) COLORADO STATE PENITENTIARY; SAINT THOMAS MORE HOSPITAL, Defendants - Appellees. _________________________________ ORDER AND JUDGMENT* _________________________________ Before BRISCOE, GORSUCH, and McHUGH, Circuit Judges. _________________________________ Lazaro Aguilar, a prisoner currently in state custody and proceeding pro se, appeals the district court’s dismissal of his complaint as frivolous. Mr. Aguilar sought relief under 42 U.S.C. § 1983 for Eighth Amendment violations founded on the defendants’ failure to provide him with proper medical care. The district court dismissed Mr. Aguilar’s complaint as frivolous, and we affirm. * After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.  This action arises out of the allegedly deficient medical care Mr. Aguilar received between October 2014 and June 2015 while incarcerated in the Colorado State Penitentiary (CSP).1 Mr. Aguilar alleged that CSP violated his Eighth Amendment right to be free from cruel and unusual punishments by providing inadequate medical care consisting of, among other things, an improper tooth extraction and other dental care, unreasonable delay in seeing an optometrist, and a failure to treat various injuries. In addition, Mr. Aguilar alleged that a CSP nurse referred him to Saint Thomas More Hospital, a private nonprofit hospital operated by Catholic Health Initiatives Colorado (referred to collectively as STMH), for a CT scan that STMH never performed. Mr. Aguilar contended STMH’s failure to perform this CT scan violated the Eighth Amendment. Mr. Aguilar sought $10,000,000 in damages from each defendant. The district court sua sponte dismissed Mr. Aguilar’s claims as legally frivolous under 28 U.S.C § 1915(e)(2)(B)(i), and Mr. Aguilar timely appealed. We generally review the dismissal of a claim as frivolous for an abuse of discretion. Fogle v. Pierson, 435 F.3d 1252, 1259 (10th Cir. 2006). But where the frivolousness determination turns on an issue of law, we review that determination de novo. Id. A claim is frivolous under § 1915(e) when “it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). 1 The district court allowed Mr. Aguilar multiple opportunities to remedy various deficiencies in his original and first amended complaints. Mr. Aguilar’s Second Amended Complaint is the operative complaint in this matter. 2  With respect to Mr. Aguilar’s claim against CSP, the district court concluded that CSP “is not a separate entity apart from” the Colorado Department of Corrections (CDOC), “which is a state agency and is entitled to Eleventh Amendment immunity.” Whether an entity enjoys Eleventh Amendment immunity is a legal issue that we review de novo. Arbogast v. Kan. Dep’t of Labor, 789 F.3d 1174, 1181 (10th Cir. 2015). Eleventh Amendment immunity extends to a state and its agencies but not to counties, municipalities, or other political subdivisions of the state. Steadfast Ins. Co. v. Agric. Ins. Co., 507 F.3d 1250, 1253 (10th Cir. 2007); see also Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984) (explaining that “in the absence of consent a suit in which the State or one of its agencies or departments is named as the defendant is proscribed by the Eleventh Amendment”). The CDOC is an “arm” or “instrumentality” of the State of Colorado, rather than a political subdivision of the state, and it therefore enjoys immunity from suit under the Eleventh Amendment unless that immunity is waived. Griess v. Colorado, 841 F.2d 1042, 1044 (10th Cir. 1988) (per curiam) (noting the “undeniable application” of Eleventh Amendment immunity to the “State of Colorado and its department of corrections”). Mr. Aguilar’s claim against CSP is therefore barred by Eleventh Amendment immunity absent a waiver. Where “it [is] clear from the face of the complaint that the defendant [is] absolutely immune from suit and no further factual development [is] required,” the district court may properly dismiss a claim sua sponte as frivolous. Hafed v. Fed. Bureau of Prisons, 635 F.3d 1172, 1178 (10th Cir. 2011). We conclude the district court here properly dismissed Mr. Aguilar’s claim against CSP as frivolous. 3  Turning to Mr. Aguilar’s claim against STMH, the district court dismissed this claim because Mr. Aguilar failed to allege “any official policy or custom of STMH that was responsible for the alleged constitutional violation.” “The legal sufficiency of a complaint is a question of law” that we review de novo. Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009). In reviewing the legal sufficiency of a complaint, we accept all well-pleaded factual allegations as true. See id. at 1097–98. To state a claim for relief in an action brought under § 1983, a plaintiff must establish both the deprivation of a constitutional or federal right, and that the deprivation was committed “under color of state law.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999). “[T]he under-color-of-state-law element of § 1983 excludes from its reach merely private conduct, no matter how discriminatory or wrongful.” Id. at 50 (internal quotation marks omitted). Where the defendant to a § 1983 action is not a state entity, “state action may be found if, though only if, there is such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself.” Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001). Like the district court, however, we find it unnecessary to analyze whether or not STMH was engaged in state action when it allegedly committed a constitutional violation, because Mr. Aguilar has failed to allege the existence of a policy or custom of STMH that led to the constitutional violation. A private entity acting under color of state law “cannot be held liable solely because it employs a tortfeasor.” Dubbs v. Head Start, Inc., 336 F.3d 1194, 1216 (10th Cir. 2003) (quoting Monell v. Dep’t of 4 Social Servs., 436 U.S. 658, 691 (1978)). Rather, to hold the entity liable, the plaintiff must identify an official policy or a custom that is the “direct cause” or “moving force” behind the constitutional violations. Id. at 1215 (internal quotation marks omitted). Mr. Aguilar’s complaint contains no allegations from which it could be inferred that STMH had a policy or custom that was the direct cause of Mr. Aguilar’s failure to receive a CT scan. Accordingly, STMH cannot be held liable for the alleged constitutional violation. Moreover, the district court identified the deficiency in Mr. Aguilar’s complaint and directed him to remedy it by “alleg[ing] specific facts that demonstrate he suffered an injury caused by an official policy or custom of STMH.” But Mr. Aguilar failed to include any such allegations in his Second Amended Complaint. As a result, his claim against STMH “lacks an arguable basis either in law or in fact,” and we cannot say the district court abused its discretion by dismissing it as frivolous.2 Neitzke, 490 U.S. at 325. Finally, Mr. Aguilar’s arguments on appeal do not meaningfully address the deficiencies that led to the district court’s dismissal of his complaint. He raises no argument that CSP does not enjoy immunity or has waived it, and he identifies no 2 Mr. Aguilar also challenges the district court’s denial of his request for a court-appointed guardian ad litem. But the district court is obligated to appoint a guardian ad litem only “to protect a minor or incompetent person who is unrepresented.” Fed. R. Civ. P. 17(c)(2). Mr. Aguilar has neither presented any “verifiable evidence” of incompetence nor otherwise demonstrated that he is incompetent to pursue his claims. See Ferrelli v. River Manor Health Care Ctr., 323 F.3d 196, 201–03 (2d Cir. 2003). We thus cannot say the district court erred in denying his request for a guardian ad litem. 5 allegations or other facts in the record that could support an inference that STMH had a custom or policy that caused the alleged constitutional violation. Accordingly, we conclude that Mr. Aguilar’s appeal in this matter is frivolous. For that reason, we deny his request to proceed in forma pauperis on appeal. See DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991) (noting that an appellant seeking leave to proceed in forma pauperis must show “the existence of a reasoned, nonfrivolous argument on the law and facts in support of the issues raised on appeal”). We affirm the district court’s dismissal of Mr. Aguilar’s complaint as frivolous. We also conclude Mr. Aguilar’s appeal in this matter is frivolous, and we therefore assess a strike under 28 U.S.C § 1915(g). We deny Mr. Aguilar’s request to proceed in forma pauperis and advise him that he is responsible for the immediate payment of the unpaid balance of his appellate filing fee. Entered for the Court Carolyn B. McHugh Circuit Judge 6 

87 N.Y.2d 235 (1995) 661 N.E.2d 1372 638 N.Y.S.2d 591 In the Matter of Campaign for Fiscal Equity, Inc., et al., Appellants, v. Ralph J. Marino, as President Pro Tempore and Majority Leader of the Senate of the State of New York, et al., Respondents. Court of Appeals of the State of New York. Argued November 27, 1995 Decided December 28, 1995. Michael A. Rebell and Robert L. Hughes, New York City, Jay Worona and Cheryl Randall, Albany, Juan Cartagena and Jonathan Feldman, New York City, for appellants. Dennis C. Vacco, Attorney-General, Albany (Frank K. Walsh, Victoria A. Graffeo and Peter H. Schiff of counsel), for respondents. Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, LEVINE and CIPARICK concur. *237SMITH, J. The principal issue in this case is whether the State Constitution mandates that a bill passed by both houses of the Legislature be presented to the Governor. Because the practice of retaining legislation passed by both houses of the Legislature does not comply with the Presentment Clause of the New York State Constitution, we reverse the order of the Appellate Division. The facts are undisputed. Senate Bill No. 3248, known as the "Maintenance of Effort Bill,"[*] was passed by both the Senate and Assembly during 1994 (Mar. 8, 1994 and June 6, 1994, respectively). It was never presented to the Governor before completion of the Legislature's 1994 legislative session. Appellants filed a combined CPLR article 78 proceeding and declaratory judgment action in August 1994, seeking (1) a judgment declaring that the respondents' action of withholding from the Governor bills passed by both houses of the Legislature violated the Presentment Clause of the New York Constitution (art IV, § 7) and the rules of the Senate (Senate Rules III, § 2; IV, § 2) and (2) an order directing respondents to present Senate Bill No. 3248 forthwith to the Governor for review. Respondents' motion to dismiss the petition/complaint on the grounds of lack of standing, lack of justiciability, and failure to state grounds for relief was granted by Supreme Court. Although finding that appellants had standing to maintain the *238 action, Supreme Court concluded that because the New York Constitution does not specifically mandate when a bill must be presented to the Governor, appellants failed to state grounds for relief. The Appellate Division affirmed, finding that judicial review of respondents' actions would intrude into "`the wholly internal affairs of the Legislature' (Heimbach v State of New York, 59 N.Y.2d 891)." (209 AD2d 80, 83.) Notwithstanding a finding of mootness, with the lapse of the 1994 legislative session, the Court invoked the exception to the mootness doctrine and reached the merits (citing Matter of Hearst Corp. v Clyne, 50 N.Y.2d 707, 714-715). The Appellate Division concluded that (1) the issue presented was an internal matter for the Legislature and (2) although a bill passed by both houses of the Legislature and presented to the Governor could not be recalled, the Constitution does not expressly require that all bills passed by both houses be presented to the Governor nor set up a timetable for presentment. Appellants argue that respondents' practice of retaining bills passed by both houses of the Legislature and thus effectively blocking executive action in approving or vetoing them violates the Presentment Clause of the New York Constitution (art IV, § 7) and the rationale of Matter of King v Cuomo (81 N.Y.2d 247). Appellants argue further that such procedure violates the principles of separation of powers and open, accountable government, and that article IV, § 7 should be read to contain an implied "rule of reason" as to the time for presentment of a bill to the Governor. Respondents argue that this Court should affirm the order of the Appellate Division because no constitutional direction, law or rule compels the Legislature to present to the Governor a bill which has passed both houses of the Legislature. We disagree with that argument and the courts below. Article IV, § 7 of the Constitution states, "Every bill which shall have passed the senate and assembly shall, before it becomes a law, be presented to the governor." Implicit in that provision is a requirement that a bill which has passed both houses of the Legislature be presented to the Governor for enactment into law or vetoing within a reasonable time after its passage. We hold that the practice of withholding from the Governor those bills on which both houses of the Legislature have formally acted is violative of article IV, § 7. To hold otherwise would be to sanction a practice where one house or one or two persons, as leaders of the Legislature, could nullify *239 the express vote and will of the People's representatives. This requirement is constitutionally required and would not interfere with the usual and appropriate interaction of the executive and legislative branches in the making of laws. This holding is also consistent with Matter of King v Cuomo (81 N.Y.2d 247, supra). In King, the Presentment Clause of the New York Constitution (art IV, § 7) was held violated by the bicameral practice of "recalling" or "reacquiring" passed bills after presentment to the Governor, but prior to gubernatorial action on the bill. King concluded that the Legislature's practice "undermine[d] the integrity of the law-making process as well as the underlying rationale for the demarcation of authority and power in this process" (id., at 255). The former recall practice allowed legislators, executive agencies and interested groups additional opportunity to influence and affect bills without public inquiry or examination. The practice of withholding passed bills while simultaneously conducting discussions and negotiations between the executive and legislative branches is just another method of thwarting open, regular governmental process, not unlike the unconstitutional "recall" policy which, similarly, violated article IV, § 7. Moreover, we expressly reject respondents' argument that the phrase "before it becomes a law" contained in the Presentment Clause is conditional, discretionary or vests in the Legislature "full and unreviewable power over a bill up until the time it chooses to present legislation to the Governor." Contrary to respondents' contention, this Clause does not sanction the practice of withholding bills passed by both houses of the Legislature. Federal cases interpreting the parallel provision of the Presentment Clause of the United States Constitution underscore the Clause's implicit directive (see, US Const, art I, § 7, cl [2]; United States v Munoz-Flores, 495 US 385, 403 [Stevens, J., concurring] ["The Clause states only that bills must be presented to the President"]; see also, Field v Clark, 143 US 649, 672; Immigration & Naturalization Serv. v Chadha, 462 US 919, 946; People ex rel. Peterson v Hughes, 372 Ill 602, 25 NE2d 75, 78 [construing the Presentment Clause of the Illinois Constitution as mandating delivery to the Governor of bills passed]). Finally, although the practice of withholding bills passed by both houses of the Legislature is not constitutionally authorized, a retroactive ruling in the instant case is not warranted (see, Matter of King v Cuomo, supra, at 256-257). The Maintenance of Effort Bill should have been presented to the Governor within a reasonable time after it was passed *240 by the Legislature. This conclusion makes it unnecessary to consider the remaining arguments advanced. Accordingly, the order of the Appellate Division should be reversed, with costs, and judgment granted declaring the practice of retaining bills that have passed both houses of the Legislature unconstitutional prospectively from this date. Order reversed, with costs, and judgment granted declaring in accordance with the opinion herein. NOTES [*] The bill is "[a]n act to amend the education law, in relation to a maintenance of effort requirement for fiscally dependent large city school districts." The purpose of the bill is to require cities with larger school districts (New York, Buffalo, Rochester, Syracuse and Yonkers) to maintain existing levels of per capita spending for the public schools in their cities and not seek to reduce the local contribution by utilizing the State education appropriations.

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 02-3249 ___________ United States of America, * * Plaintiff - Appellee, * * Appeal from the United States v. * District Court for the Western * District of Missouri. William Martinez, also known as * William T. Melvin, * * Defendant - Appellant. * * __________ Submitted: April 15, 2003 Filed: August 12, 2003 ___________ Before MORRIS SHEPPARD ARNOLD, BEAM, and MELLOY, Circuit Judges. ___________ MELLOY, Circuit Judge. William Martinez pled guilty to being an unlawful user of a controlled substance and a felon in possession of firearms, in violation of 18 U.S.C. §§ 922(g)(1), (3), and 924(a)(2). Over Martinez’s objections, the district court imposed a two-level specific-offense enhancement under U.S.S.G. § 2K2.1(b)(4) because one of the two firearms was stolen, and a four-level specific-offense enhancement under U.S.S.G. § 2K2.1(b)(5) because the firearms were used in connection with another felony offense. Martinez was sentenced to 100 months, with three years supervised release.  On appeal, Martinez alleges three points of error: (1) that imposition of the § 2K2.1(b)(4) enhancement in Martinez’s case violated his Fifth Amendment due process rights because the government did not establish that he knew the firearm at issue was stolen; (2) that the government failed to establish a factual predicate for the § 2K2.1(b)(5) enhancement; and (3) that the district court impermissibly double- counted when it imposed enhancements under both U.S.S.G. § 2K2.1(b)(4) and § 2K2.1(b)(5). We affirm in part and reverse in part. I. In a superseding indictment, the government charged Martinez with two counts of being an unlawful user of a controlled substance and a felon in possession of firearms, in violation of 18 U.S.C. §§ 922(g)(1), (3), and 924(a)(2). Martinez pled guilty to Count 2, which relates to Martinez’s conduct and arrest on October 18, 2001. The government dismissed Count 1, which involved a subsequent run-in with authorities on January 21, 2002, wherein Martinez was arrested while attempting to steal a car. The district court calculated Martinez’s sentence based solely on Count 2, and our factual recitation of the relevant offense conduct is drawn from the presentence report. On October 18, 2001, a citizen reported to police that she had found a black bag on a road near her residence in Rogersville, Missouri. An officer responded to the call, and, on opening the bag, discovered two credit cards in the name of Carla D. Wingo, a .22 caliber pistol, and a 9 millimeter pistol. Also in the bag were a social security card belonging to William T. Martinez, a scrap book, and miscellaneous papers from the Missouri Department of Corrections belonging to Martinez. Not far from where the bag was located, the officer found Martinez standing alongside his truck. During the ensuing conversation, Martinez told the officer that -2- he was missing a bag that contained his papers, identification, and a scrapbook. The officer noticed clothing and tools in Martinez’s truck. The officer contacted the local sheriff’s office and was told that Carla Wingo’s residence had recently been burglarized and that a number of the items in Martinez’s truck, as well as the credit cards and the .22 caliber pistol, had been stolen during the burglary. As a result, Martinez was arrested for possession of stolen property. The district court calculated Martinez’s total offense level at 23, including the two- and four-level specific offense enhancements challenged in this appeal. This score, combined with Martinez’s Category VI criminal history, resulted in a sentencing range of 92 to 115 months. The district court sentenced Martinez to 100 months in prison, and three years supervised release. This appeal timely followed. II. We review the district court’s factual findings for clear error and its legal conclusions concerning the application of the sentencing guidelines de novo. United States v. Scolaro, 299 F.3d 956, 957 (8th Cir. 2002); United States v. Rohwedder, 243 F.3d 423, 425 (8th Cir. 2001). Martinez’s constitutional claim is reviewed de novo. United States v. Johnson, 56 F.3d 947, 953 (8th Cir. 1995). A. U.S.S.G. § 2K2.1(b)(4): We affirm the district court’s imposition of the two-level enhancement under § 2K2.1(b)(4),1 and reject Martinez’s constitutional challenge. The application notes to § 2K2.1 explain that the enhancement under subsection (b)(4) for a stolen firearm “applies whether or not the defendant knew or had reason to believe that the firearm 1 U.S.S.G. § 2K2.1(b)(4) states, “If any firearm was stolen, . . . increase by 2 levels.”). -3- was stolen . . . .” U.S. Sentencing Guidelines Manual § 2K2.1, cmt. n.19 (2002). Martinez contends that imposition of this type of strict liability enhancement violated his Fifth Amendment due process rights, and that the government was constitutionally required to prove that he knew the firearm was stolen. Although we have held on several occasions that § 2K2.1(b)(4) does not include a knowledge requirement, we have never explicitly resolved the issue on constitutional grounds. See United States v. Hernandez, 972 F.2d 885, 888 (8th Cir. 1992) (affirming enhancement without reference to constitutional question); United States v. Amerson-Bey, 898 F.2d 681, 683 (1990) (affirming enhancement but expressly declining to reach constitutional question because the defendant had not raised his constitutional claim before the district court); United States v. Anderson, 886 F.2d 215, 216 (8th Cir. 1989) (affirming enhancement without reference to constitutional question). We now join every other circuit to have addressed the issue and explicitly hold that § 2K2.1(b)(4) does not violate the constitution.2 We agree that no due process concerns are implicated by the lack of a scienter requirement because “the upward adjustment for possession of a stolen firearm does not stand alone as an independent crime but is part of a sentencing court’s quest to formulate a proper sentence.” Singleton, 946 F.2d at 26, quoted in Murphy, 96 F.3d at 849. See also Sanders, 990 F.2d at 584 (distinguishing between strict liability crimes and strict liability enhancements). As such, the enhancement does not alter the statutory maximum penalty, negate the presumption of innocence or alter the burden of proof for the underlying offense. Goodell, 990 F.2d at 499-500. “Further, the government has a legitimate interest in punishing possession of a stolen firearm and placing the burden 2 See United States v. Murphy, 96 F.3d 846, 848-49 (6th Cir. 1996); United States v. Griffiths, 41 F.3d 844, 845-46 (2d Cir. 1994); United States v. Richardson, 8 F.3d 769, 770 (11th Cir. 1993); United States v. Sanders, 990 F.2d 582, 584 (10th Cir. 1993); United States v. Goodell, 990 F.2d 497, 499-501 (9th Cir. 1993); United States v. Schnell, 982 F.2d 216, 219 (7th Cir. 1992); United States v. Mobley, 956 F.2d 450, 452, 459 (3d Cir. 1992); United States v. Singleton, 946 F.2d 23, 27 (5th Cir. 1991); United States v. Taylor, 937 F.2d 676, 682 (D.C. Cir. 1991). -4- upon one who receives a firearm to ensure that the possession is lawful.” Griffiths, 41 F.3d at 845 (citation omitted). B. U.S.S.G. § 2K2.1(b)(5): U.S.S.G. § 2K2.1(b)(5) provides for a four-level enhancement if the defendant used or possessed any firearm “in connection with another felony offense.” Martinez argues that the enhancement is not warranted in his case because the government has not demonstrated that the firearms at issue, the .22 caliber and 9 millimeter pistols, were used or possessed in connection with any other felony. We agree that the government has failed to meet its burden on this issue. In the plea agreement, the government stipulated that it did “not have any evidence that Defendant was committing another felony offense at the time of his apprehension on October 18, 2001, during which he possessed the firearms in question other than receipt/possession of stolen property.” The government contends that Martinez’s possession of stolen credit cards (which were in the abandoned bag along with Martinez’s identification papers) and other stolen items on his person and in his truck at the time of his arrest satisfies the “other felony” requirement of § 2K2.1(b)(5). Under Missouri law, however, possession of stolen property is a class A misdemeanor unless the property involved has a value of one hundred fifty3 dollars or more, in which case it is a class C felony. Mo. Ann. Stat. § 570.080 (2002). The government concedes that neither the plea agreement, the presentence report, nor the transcript of the sentencing hearing enumerates, or values, the allegedly stolen items in Martinez’s possession at the time of his arrest. The government argues, however, that possession of stolen credit cards is, in itself, a 3 In 2002, the threshold amount for felony classification was raised to five hundred dollars. Martinez’s charged conduct occurred on October 18, 2001, prior to the statutory amendment. -5- felony offense. The government reasons that because Missouri makes it a felony to steal a credit card, Mo. Ann. Stat. § 570.030.3(3)(c), we can conclude that it is a felony to possess a stolen credit card despite the statute’s omission of language to that effect. We decline to read language into Missouri’s criminal code that was not clearly intended by its legislature. Cf. e.g., N.Y. Penal Law § 165.45 (2003) (felony possession of stolen property applies where the value of the property exceeds one thousand dollars or, inter alia, the property consists of a credit card); Ohio Rev. Code Ann. § 2913.71 (elevating possession of stolen property to a felony where the property involved is a credit card); N.M. Stat. Ann. § 30-16-27 (2002) (establishing a distinct offense of possession/retention of a stolen credit card). Missouri’s theft and possession of stolen property statutes are not drafted with parallel construction and we will not force a parallel interpretation on the two provisions. Compare Mo. Ann. Stat. § 570.030 with Mo. Ann. Stat. § 570.080. Although the theft statute, like the possession statute, includes a one hundred fifty dollar felony threshold, the theft statute, in addition, enumerates more than a dozen specific items, the theft of which merits felony status regardless of value. See Mo. Ann. Stats. § 570.030. These include the theft of any credit card; any “horse, mule, ass, cattle, swine, sheep, or goat; any United States national flag; or any “pleading, notice judgment or any other [judicial] record.” See id. There are many reasons why the legislature may have determined that theft of these items should be punished more severely than others, and those reasons do not necessarily apply where all that is at issue is possession of the stolen items. The government has directed us to nothing in the Missouri criminal code or legislative history to suggest that Missouri considers theft of property and possession of stolen property inherently equivalent crimes. Nor has the government demonstrated that under Missouri law crimes involving credit cards are categorically treated as felonies. To the contrary, the use of a stolen credit card to obtain services or property is a class A misdemeanor unless the value of the property or services at -6- issue exceeds one hundred fifty dollars. Mo. Stat. Ann. § 570.130; see also Mo. Stat. Ann. § 570.135 (fraudulent procurement of a credit card or procurement of personal identifying information of another person used to fraudulently obtain a credit card is a class A misdemeanor). Given this, we cannot conclude that the legislature intended to implicitly confer felony status to possession of a stolen credit card. For imposition of U.S.S.G. § 2K2.1(b)(5), the government was required to demonstrate that Martinez possessed the firearms charged in Count 1 in connection with another felony offense. Here, the alleged other felony offense was possession of stolen property. There is nothing in the record to establish that the stolen property in Martinez’s possession on October 18, 2001 exceeded Missouri’s statutory felony threshold, and thus the four-level enhancement should not have been imposed.4 Finally, we briefly address, and reject, the government’s suggestion at oral argument that we recalculate Martinez’s sentence using relevant conduct from Count 1, the dismissed count, and that in so doing we could reach the same sentence. The government posits that consideration of Count 1 would be appropriate because the defendant did not object to the offense conduct on that count as set out in the presentence report. We decline to take this approach. Although we may affirm the district court on any basis supported by the record, it is clear in this case that, with regard to sentencing, both parties, and the district court, were focused on the conduct recited in Count 2, the October 18, 2001 incident. There is no mention of the facts underlying Count 1 in either the plea agreement or the sentencing transcript. Cf. United States v. Juan Martinez, 258 F.3d 760, 761 (8th Cir. 2001) (noting that the plea agreement provided that the defendant “would plead guilty to Count 1 and that Counts 2, 3, 4, and 5 would be considered relevant conduct”). Under these circumstances, we will not recalculate Martinez’s sentence based on factors not considered relevant by the court or parties at the trial level. 4 Given our conclusion that § 2K2.1(b)(5) was inapplicable in this case, we need not address Martinez’s double counting challenge. -7-  III. In sum, we affirm the district court’s imposition of the two-level enhancement under U.S.S.G. § 2K2.1(b)(4), and reverse with regard to imposition of the four-level enhancement under U.S.S.G. § 2K2.1(b)(5). The case is remanded to the district court for re-sentencing without the U.S.S.G. § 2K2.1(b)(5) four-level enhancement. A true copy. Attest: U.S. COURT OF APPEALS, EIGHTH CIRCUIT. -8- 

952 F.2d 1400 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.UNITED STATES of America, Plaintiff-Appelleev.Terri JUSTIN, Defendant-Appellant No. 90-50409. United States Court of Appeals, Ninth Circuit. Submitted Oct. 8, 1991.*Decided Jan. 13, 1992. Before FLETCHER, D.W. NELSON and BRUNETTI, Circuit Judges. 1 MEMORANDUM** 2 Terri Justin appeals the district court's denial of her motion to receive credit against her sentence for the time that she was free on bond prior to the commencement of the sentence. In this appeal, Justin argues that pre-trial release on bond subject to travel restrictions and reporting conditions constitutes "custody" under 18 U.S.C. § 3568 so as to entitle her to credit against her sentence. She also contends that the district court erred by issuing its order before Justin had an opportunity to respond to the government's brief and without an attached memorandum of law. Because the district court was without jurisdiction to hear Justin's motion, we affirm. 3 A district court's decision regarding a petition to vacate, set aside, or correct a sentence is reviewed de novo. United States v. Quan, 789 F.2d 711 (9th Cir.), cert. dismissed, 478 U.S. 1033 (1986). 4 Justin does not specify in her brief under what statutory provision she is bringing her motion to correct her sentence. A claim for credit against a federal sentence for time spent in custody prior to the commencement of a sentence is properly characterized as an attack on the execution of a sentence rather than as an attack on the legality of a sentence. See United States v. Espinoza, 866 F.2d 1067, 1071 (9th Cir.1988); United States v. Giddings, 740 F.2d 770 (9th Cir.1984). The proper procedure for review of the execution of a sentence is through a petition for a writ of habeas corpus under 28 U.S.C. § 2241. See Giddings, 740 F.2d at 772; see also United States v. Mares, 868 F.2d 151, 151 (5th Cir.1989) (holding that a claim for credit for time spent free on bond "must proceed via a petition for habeas corpus") (emphasis added). 5 The district court could not construe Justin's motion as a habeas petition because "the writ can only issue from a court with jurisdiction over the prisoner or his custodian." Giddings, 740 F.2d at 772 (citing Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 494-95 (1973)). Accordingly, were Justin to file a habeas petition, she could do so only in the district where she is confined.1 6 AFFIRMED. * The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a) and Ninth Circuit Rule 34-4 ** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3 1 Moreover, "a federal prisoner is [generally] required to exhaust [her] federal administrative remedies before filing a habeas petition." Tucker v. Carlson, 925 F.2d 330, 332 (9th Cir.1991); see also United States v. Chalker, 915 F.2d 1254, 1256-57 (9th Cir.1990) (stating that prisoners sentenced for crimes committed before November 1, 1987, who are seeking credit for time served must first exhaust administrative remedies through the Bureau of Prisons). Justin's crime was committed in June 1987

137 Ga. App. 851 (1976) 225 S.E.2d 69 LAUER v. BODNER et al. 51528. Court of Appeals of Georgia. Argued January 5, 1976. Decided February 12, 1976. Rehearing Denied March 8, 1976. John Genins, for appellant. Dennis & Fain, Robert E. Corry, Jr., Wade K. Copeland, for appellees. PANNELL, Presiding Judge. Sue Lauer, on January 30, 1975, brought an action against John Bodner, a nonresident of the State of Georgia, seeking recovery for personal injury, property damage, medical expenses, loss of earnings and pain and suffering arising out of an automobile wreck which occurred January 31, 1973, when the plaintiff was a passenger in the automobile, belonging to plaintiff, driven by defendant with the plaintiff's permission. The defendant, Bodner, was purportedly served pursuant to the Nonresident Motorist Act. No question relating to that service is involved in this appeal. Illinois Farmers Insurance Company, from whom the plaintiff had purchased a policy of automobile liability insurance while she was a resident of Fort Wayne, Indiana, was permitted to intervene in said proceeding and set up defenses in order to protect its interest under the policy, if any. No defenses were filed by John Bodner. Illinois Farmers Insurance Company filed four defenses. The first defense denied the allegations as to the negligence of the defendant, Bodner, and the injuries and damage to the plaintiff. The second defense was to the effect that the provisions of Part I of the policy making Bodner an insured, he at the time driving the automobile with permission of the named insured, provided no coverage because of the provisions of exclusion No. 12 "This policy does not apply under Part I . . . to the liability of any insured for bodily injury to . . . the named insured." The third defense was based upon the failure of the defendant, John Bodner, to immediately forward to the insurer the summons and process served upon him. The fourth defense was based upon the failure of the defendant, John Bodner, to cooperate with the insurer. A copy of the policy was attached to the answer as an exhibit. The insurer made a motion for summary judgment in its favor "on the grounds that there is no issue as to any material fact and this defendant is entitled to a judgment as a matter of law." In support of its motion is attached an affidavit which established the policy involved and that *852 Bodner never sent to the insurer the copy of the summons and complaint, and that he never called upon or requested the insurer to defend him as an insured under the policy. There was no evidence introduced relating to the merits of the action as against the defendant, Bodner. The trial judge sustained the motion for summary judgment and "dismissed" the action as to "defendant, Illinois Farmers Insurance Company." The plaintiff in the court below, Sue Lauer, appealed this ruling. Held: 1. Part I of the policy insured against liability for personal injury and property damage. It also provided that anyone driving with permission of the named insured, plaintiff-appellant, was an insured under the policy. Paragraph 12 of the exclusions provided: "This policy does not apply under Part I; . . . to the liability of any insured for bodily injury . . . to the named insured." This exclusion clearly excludes liability for bodily injuries under the facts of this case. See in this connection Morris v. State Farm Mut. Auto Ins. Co., 88 Ga. App. 844 (1) (78 SE2d 354). This provision, however, does not exclude liability for property damages; this is excluded under Paragraph 10 of the exclusions to Part I of the policy, which excludes "damage to property (a) owned . . . by the insured, . . ." Under the designation Definition of Insured it is stated "The unqualified word `insured' includes (a) with respect to the described automobile (1) the named insured, . . ." There being no coverage under Part I of the policy for the reasons above given, we conclude that summary judgment as to defense No. 2 was properly granted and makes moot any question as to whether there was lack of coverage under Part I because Bodner failed to cooperate with the insurer by failing to forward the summons and complaint to the insurer which was raised by the third and fourth defenses. 2. However, the appellant contends that she and the defendant have coverage under the Uninsured Motorist Provisions of the policy, Part II thereof, as to injury and damage. There was no evidence that Bodner carried automobile liability insurance, and the burden being on movant on motion for summary judgment, we will, for the *853 purpose of this case, assume he did not. However, even with such assumption we are of the opinion there was no coverage as claimed under the Uninsured Motorist Provisions of Part II of the policy. Under this provision of the policy the insurer agreed "[t]o pay all sums which the owner or operator of an uninsured motor vehicle would be legally responsible to pay as damages to the insured because of bodily injury sustained by the insured, caused by accident, and rising out of the ownership, maintenance or use of such uninsured motor vehicle" with certain conditions attached not here material. Under definitions, the following appears: "Described automobile means automobile described in the policy declaration for which uninsured motorist insurance is indicated as covered, including a newly acquired automobile or substitute automobile. Uninsured means (1) the named insured or a relative, (2) any other person while occupying an uninsured motor vehicle,. . . with respect to damages he is entitled to recover because of bodily injury to which Part II applies sustained by an uninsured under (1) or (2) above. Insured motor vehicle means (1) the described automobile, provided the actual use thereof is by the named insured or a relative or by any other person with the permission of the named insured, . . . Uninsured motor vehicle means," and then follow various general definitions thereof. Then follows a provision that "the term `uninsured motor vehicle' shall not include: (a) an `insured motor vehicle,' or (b) a motor vehicle owned by the named insured or any resident of the same household . . ." This latter exclusion is valid and in accordance with, or compatible with, our Georgia Uninsured Motorist Statute. See Barras v. State Farm Mut. Auto. Ins. Co., 118 Ga. App. 348, 349 (163 SE2d 759) in which the terms of the policy were similar and the facts as to the parties were the same as those in the present case, and in which it was held: "A Georgia statute (Ga. L. 1963, p. 588, as amended; Code Ann. § 56-407.1 (a)) requires, unless rejected by the insured named in the policy, coverage of the insured for `all sums which he shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle.' In this statute `the term "uninsured motor vehicle" means a motor vehicle, other than a motor *854 vehicle owned by or furnished for the regular use of the named insured, the spouse of any such named insured . . .' Code Ann. § 56-407.1 (b). As applied to the facts alleged the coverage of the policy is consistent with the Georgia statute and does not include liability to the plaintiffs arising out of the permissive use of the insured's automobile by a friend who carried no policy covering its use." Appellant contends, however, that the contract, construed under the case law and statutes of the State of Indiana where the contract was entered into requires a different conclusion. Paragraph 43 (c) of the Civil Practice Act (Ga. L. 1968, pp. 1104, 1108; Code Ann. § 81A-143 (c)) provides that "A party who intends to raise an issue concerning the law of another State or of a foreign Country shall give notice in his pleadings or other reasonable written notice. The court, in determining such law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the rules of evidence. The court's determination shall be treated as ruling on a question of law." There is nothing in the record sent to this court disclosing that the appellant gave notice in her pleadings or other reasonable written notice of her intent to raise this issue, nor was any evidence adduced as to such laws. Under these circumstances, neither the court below nor this court can take judicial cognizance of the law of the sister state. Independent Order of Puritans v. Cadden, 25 Ga. App. 27 (1) (102 SE 474); Norman v. Sovereign Camp W. O. W., 69 Ga. App. 437 (1) (25 SE2d 887). 3. We, accordingly, apply the laws of this state (Craig v. Craig, 53 Ga. App. 632 (186 SE 755)) and hold there was no coverage under the uninsured motorist provisions of the plaintiff's policy under the facts of this case, and the trial judge was correct insofar as his judgment may have been based upon such lack of coverage. However, because there was no evidence in support of defense number one denying the negligent acts of the defendant Bodner and alleged injuries resulting therefrom, the judgment of the trial court, if it be construed to cover defense number one, is in error. See Brown v. Hilton Hotels Corp., 133 Ga. App. 286, 289 (2) *855 (211 SE2d 125). Judgment affirmed in part and reversed in part. Bell, C. J., Deen, P. J., Quillian, Clark, Stolz, Webb and Marshall, JJ., concur. Evans, J., dissents. EVANS, Judge., dissenting. 1. Division 1 of the majority opinion holds that there is no coverage to the injured person for bodily injuries because under paragraph 12 of the exclusions it is provided: "This policy does not apply under Part 1; . . . to the liability of any insured for bodily injury to the named insured." (Emphasis supplied.) However, the policy shows the named insured to be Sue Doss, and the policy further defines "named insured" as including the spouse of the named insured. But the plaintiff in this case is neither the named insured nor the spouse of the named insured, but is a different person, to wit, Sue Lauer. If perchance Sue Doss married a man named Lauer after issuance of the policy, the burden was on the insurer to clearly prove such fact. We find nothing in the record to supply this proof. Therefore, I disagree with the holding in Division 1 by the majority, and summary judgment to the insurer was wrongfully granted. 2. Further, in Division 1 of the majority opinion it is held there was no coverage as to bodily injury because "Bodner failed to cooperate with the insurer by failing to forward the summons and complaint to the insurer which was raised by the third and fourth defenses." But Bodner was not the holder of the policy, and had not agreed to and was not bound to cooperate and carry out the terms of the policy, because for aught that we know, he knew nothing of the policy or its terms and requirements. He was driving the car by permission of the owner of the policy. 3. But even if the named insured had failed to give *856 notice to the insurance company as to Bodner being sued, that is, if Sue Doss and Sue Lauer are one and the same person, and if she failed to turn a copy of the complaint over to the insurer so it might intervene and answer, much more misconduct than that must be shown against the insured person before the insurance company may be relieved. The Court of Appeals and the Supreme Court have thoroughly threshed this question out in the case of Cotton States Mut. Ins. Co. v. Proudfoot, 126 Ga. App. 799 (191 SE2d 870), a 5 to 4 decision, which was reversed by the Supreme Court in 230 Ga. 169 (196 SE2d 131). There it is squarely held by the Supreme Court that the four judges of the minority opinion in the Court of Appeals were right; and that it must be shown by the insurance company that the insurer committed a "wilful and intentional refusal to cooperate," otherwise coverage exists. (Emphasis supplied.) Merely to show a lack of cooperation is not enough. Also, holding to the same effect, are the following cases, to wit: St. Paul Fire &c. Ins. Co. v. Gordon, 116 Ga. App. 658, 660 (158 SE2d 278), written by Judge Eberhardt, concurred in by Judge Hall and Chief Judge Felton; Nat. Union Fire Ins. Co. v. Carmical, 99 Ga. App. 98, 103 (107 SE2d 700); State Farm Mut. Auto. Ins. Co. v. Wendler, 117 Ga. App. 227, 231 (160 SE2d 256). A rather lengthy dissent by Judge Pannell in Cotton States Mut. Ins. Co. v. Proudfoot, 126 Ga. App. 799, supra, pp. 802-807, further supports the position taken in this dissent. The motion for summary judgment makes no allegation that there was a "wilful and intentional refusal to cooperate" — nor did it prove such wilful and intentional refusal to cooperate. Of course, it is too well known to require citation of authority that all allegations and all evidence in a motion for summary judgment must be construed most strongly against the movant for summary judgment. See Holland v. Sanfax Corp., 106 Ga. App. 1 (1) (126 SE2d 442); McCarty v. National Life &c. Ins. Co., 107 Ga. App. 178, 179 (129 SE2d 408). 4. Further, the intervention of the insurer (par. 4) shows in this case that the complaint and notice of the claim was promptly made known to the insurance *857 company, and it had every opportunity of protecting itself. See R. 7.

335 F.2d 15 64-2 USTC P 9644 FRIBOURG NAVIGATION COMPANY, Inc., Petitioner,v.COMMISSIONER OF INTERNAL REVENUE, Respondent. No. 72, Docket 28165. United States Court of Appeals Second Circuit. Argued Jan. s6, 1964.Decided July 15, 1964. James B. Lewis, New York City (Theodore Ness, Michael J. Nassau and Paul, Weiss, Rifkind, Wharton & Garrison, New York City, on the brief), for petitioner. William A. Friedlander, Atty. Dept. of Justice, Washington, D.C. (Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson and Harry Baum, Dept. of Justice, Washington, D.C., on the brief), for respondent. Before SWAN, MOORE and SMITH, Circuit Judges. J. JOSEPH SMITH, Circuit Judge. 1 The sole issue presented by this appeal is whether a taxpayer is entitled to a depreciation deduction for the year in which a depreciable asset is sold at more than its depreciated cost. The Tax Court sustained the Commissioner's disallowance of the deduction, and the taxpayer has appealed to this court. We agree with the Tax Court's determination and affirm the judgment. 2 The taxpayer, Fribourg Navigation Co., operated two cargo ships in foreign commerce. One of these was the S. S. Feuer, a Liberty ship purchased in December of 1955 for $469,000. Just prior to purchasing the Feuer, the taxpayer secured a letter ruling from the Engineering and Valuation Branch of the Internal Revenue Service advising that it would accept straight line depreciation of the ship over a useful economic life of three years, subject to change if warranted by subsequent experience. The letter ruling also advised that the Internal Revenue Service would accept a salvage value of $54,000 on the Feuer. This estimate of the Feuer's useful economic life and salvage value, concededly reasonable in December of 1955, was thrown out of kilter by a scarcity of ships resulting from the Suez Crisis of 1956-57, which sharply inflated the values of ships normally considered obsolete. In June of 1957 the taxpayer accepted an offer to sell the Feuer for $700,000, $231,000 more than it had paid for the ship a year and a half before. When the Feuer was delivered to its new owner on December 23, 1957, the contract terms were slightly modified, reducing the purchase price to $695,500. 3 Relying on the letter ruling, the taxpayer deducted the $54,000 estimated salvage value from the $469,000 cost and spread the $415,000 equally over a three year useful life-- from December 21, 1955 to December 21, 1958. This resulted in a daily depreciation of about $378.65. On its income tax returns, the taxpayer claimed the following depreciation deductions for the Feuer: 4 Calendar Year Period of Ownership Depreciation 1955 10 days $ 3,786.50 1956 366 days 138,585.77 1957 357 1/2 days 135,367.24 5 ------------ Total $277,739.51 6 On March 7, 1957, prior to the sale of the Feuer, the taxpayer adopted a plan of complete liquidation, which was carried out within 12 months. Since the liquidation came within the sanctuary of Section 337 of the Internal Revenue Code, the taxpayer incurred no tax liability on the capital gain from the sale of the Feuer. For information purposes only, the taxpayer reported a capital gain of $504,239.51 (the difference between the selling price and the adjusted basis after taking a depreciation allowance for 357 1/2 days of 1957). The taxpayer reported a gross income (after cost of operations) of $391,811.31 in 1957. This was reduced to $141,193.35 after deductions of $250,617.96, including $135,367.24 for the depreciation of the Feuer in 1957. 7 The Commissioner disallowed the $135,367.24 deduction in full, taking the position that a taxpayer cannot depreciate an asset during the year its sale reveals that it has not depreciated. At the start of 1957 the Feuer had an adjusted basis of $326,627.73. In December of 1957 it was sold for $695,500. The Commissioner claims Congress never intended to permit further depreciation under such circumstances, and that a depreciation deduction claimed when the taxpayer knows with certainty that the asset has appreciated rather than depreciated must be disallowed as unreasonable. The Commissioner does not seek to recapture the depreciation deductions allowed for 1955 and 1956. He is content with contending only that depreciation disallowance should be limited to the year in which an asset is sold for more than its adjusted basis. 8 Though perhaps logically inconsistent, this position is strongly suggested by the opinion of the Sixth Circuit in Cohn v. United States, 259 F.2d 371 (1958), which first permitted the Commissioner to disallow depreciation deductions on assets sold for more than their adjusted basis. In 1941-42 the taxpayers in Cohn began to operate three flying schools to train pilots under the Army Air Corps Contract Flying School Program. The taxpayers determined that their contracts for operation of the schools would terminate at the end of 1944, and the equipment they had purchased to operate the schools should be depreciated over a useful economic life ending on December 31, 1944. In computing their depreciation deductions, the taxpayers neglected to place any salvage value on the equipment, though operators of similar flying schools used an estimated salvage value of ten percent in establishing their depreciation schedules. One of the schools ceased its operations on August 4, 1944, and its equipment was sold at auction during that month. The property of the other two schools was auctioned off in November of 1944. Because of wartime shortages, the equipment brought substantial sums, exceeding the adjusted basis of the assets at the beginning of 1944. The Commissioner disallowed the depreciation deductions for all the years as excessive and unreasonable. The District Court found that a salvage value of 10% Of the original cost should have been used in computing the depreciation schedules and that the actual sales price should have been substituted for the salvage value in the year in which the asset was sold. Only the latter holding was appealed to the Sixth Circuit, which affirmed the District Court. 9 The holding of Cohn has been variously construed. Some have taken a very narrow view, reading Cohn as holding only that on the peculiar facts the District Court's finding that the salvage value should be redetermined in the year of the assets' sale to reflect the sales price was not clearly erroneous. Others have considered it to lay down a rule of law that the depreciation deduction for the year in which an asset is sold must be adjusted to limit the deduction to the amount, if any, by which the adjusted basis at the start of the year exceeds the sales price. Compare Motorlease Corp. v. United States, 215 F.Supp. 356, 361-64 (D.C.Conn.1963) (rev'd on appeal, 2 Cir., 334 F.2d 617, 1964) and Note, 41 Ore.L.Rev. 159, 165-66 (1962) with Randolph D. Rouse, 39 T.C. 70 (1962); Rev.Rul. 62-92, 1962-1 C.B. 29; and Note, 37 Tex.L.Rev. 787 (1959). 10 Though it could have been more expolicit, we think that the Cohn case adequately supports the Commissioner's position and supports affirmance of the Tax Court's decision in this case. Section 167(a) of the Internal Revenue Code states as a general rule: 'There shall be allowed as a depreciation deduction a reasonable allowance for the exhaustion, wear and tear (including a reasonable allowance for obsolescence) * * * of property used in the trade or business * * *.' Thus the dispute centers about whether it is reasonable to allow a deduction for depreciation in the year in which an asset is sold for more than its adjusted basis. We think such an allowance unreasonable, for its contravenes the basic purpose of the depreciation deduction. 11 Basically, our income tax is a tax on net income, and the expenses of generating income are normally considered deductible from gross income. The purpose of the depreciation allowance is to enable the taxpayer to recover the net cost of a wasting asset used in his trade or business by charging the diminution in the asset's value each year against the gross income of that year. Because our income tax system is based on annual reporting and liability and the taxpayer normally holds wasting assets for more than a year, the proper amount of depreciation to be taken each year must depend on estimates. The proper depreciation allowance 'is that amount which should be set aside for the taxable year in accordance with a reasonably consistent plan (not necessarily at a uniform rate), so that the aggregate of the amounts set aside, plus the salvage value, will, at the end of the estimated useful life of the property, equal the cost * * * of the property * * *' Treasury Regulations, 1.167(a)-1. See also United States v. Ludey, 274 U.S. 295, 300-301, 47 S.Ct. 608, 71 L.Ed. 1054 (1927). 12 The Commissioner does not claim that the depreciation schedule adopted by the taxpayer in 1955 when the Feuer was purchased was unreasonble. Rather his claim is that it is unreasonable to follow an estimate when one knows that estimate is incorrect. The Commissioner's position finds support in 1.167(b)-0(a) of the Regulations in force during 1957. 13 'Any reasonable and consistently applied method of computing depreciation may be used or continued in use under section 167. Regardless of the method used in computing depreciation, deductions for depreciation shall not exceed such amounts as may be necessary to recover the unrecovered cost or other basis less salvage during the remaining useful life of the property. The reasonableness of any claim for depreciation shall be determined upon the basis of conditions known to exist at the end of the period for which the return is made.' 14 We think the Regulations make it plain that the relevant time for assessing the reasonableness of the depreciation deduction is the end of the period for which the return is made. At the end of 1957 it hardly seems reasonable to claim that the value of the Feuer had declined below its adjusted basis. 15 To be sure, the Regulations also provide that the depreciation allowance 'shall not reflect amounts representing a mere reduction in market value.' 1.167(a)-1. If depreciation schedules had to be revised each time an asset's market value rose or declined, an intolerable strain would be placed on accounting methods. But no such practical difficulty presents itself here. All that is required is a comparison of the asset's selling price with its adjusted basis. A sale which indicates that an estimated decline in an asset's value is greatly out of line is not a 'mere fluctuation in market value,' but 'a single and final adjustment in the closing of the books on the asset involved.' Cohn v. United Staes, supra, 259 F.2d at 378. 16 Though the increment in the Feuer's value resulted from a fortuity normally associated with capital gain, the depreciation allowance is measured by the net cost of the asset to the taxpayer. If an asset costs a taxpayer nothing for a year, the economic factors responsible for the lack of expense to the taxpayer should be of no concern in arriving at the deprciation allowance. Here the sale established with mathematical certainty that the entire cost of the ship had been recovered by the sale. No injustice results from denying the taxpayer an allowance he knows to be fictional at the time he claims it. 17 Little support for the taxpayer's position can be derived from Congressional passage in 1962 of 1245 of the Internal Revenue Code. Section 1245 is addressed to a much broader problem than disallowance of depreciation deductions for the year of an asset's sale. The Cohn case refused to permit the Commissioner to recapture depreciation in years other than that of an asset's sale. Section 1245 permits recapture of depreciation allowed in years prior to an asset's sale by treating gain on the transfer of certain specified property to the extent of depreciation taken after 1961 as ordinary income instead of capital gains. See generally, Schapiro, Recapture of Depreciating and Section 1245 of the Internal Revenue Code, 72 Yale L.J. 1483 (1963). 18 The judgment of the Tax Court is affirmed. 19 MOORE, Circuit Judge (dissenting). 20 By its decision in this case and in United States v. The Motorlease Corporation, 2 Cir., 334 F.2d 617, this court not only enacts judicial legislation which the Congress itself has rejected but overturns judicial and administrative precedents of many years' standing in the field of allowable depreciation. 21 The law in effect in 1957, the applicable year here, provided as to 'DEPRECIATION' that 'There shall be allowed as a depreciation deduction a reasonable allowance for the exhaustion, wear and tear (including a reasonable allowance for obsolescence)-- (1) of property used in a trade or business, or (2) of property held for the production of income.' (Sec. 167, Int.Rev.Code of 1954.) The basis, 'for the purpose of determining the gain on the sale or other disposition of such property,' was to be the 'adjusted basis provided in section 1011.' Sec. 167(f). 22 The Regulations provide for the setting aside as a depreciation deduction an amount 'in accordance with a reasonably consistent plan.' 'so that the aggregate of the amounts set aside, plus the salvage value, will, at the end of the estimated useful life of the depreciable property, equal the cost or other basis of the property as provided in section 167(f) and 1.167(f)-1.' 23 'Useful life,' here determined by the Commissioner to have been three years, was subject to modification 'by reason of conditions known to exist at the end of the taxable year' and could be 'redetermined' but 'only when the change in the useful life is significant.' 1.167(b). 24 The other important factor, 'salvage value,' is defined with clarity as 'the amount (determined at the time of acquisition) which is estimated will be realized upon sale or other disposition-- ' 1.167(c)-1. The Regulation contains the injunctions that 'Salvage value shall not be changed at any time after the determination madd at the time of acquisition merely because of changes in price levels,' and that 'Salvage value must be taken into account in determining the depreciation deduction * * *' The time period during which depreciation is allowable is from the time 'when the asset is placed in service' until it 'is retired from service.' Propertionate parts of one year's depreciation are allowable for the first and last years during which the asset is in service. 1.167(g)-10. 25 These underlying and controlling legal principles are clear. Their application to the facts of this case are (or should be) equally clear. 26 The asset or property is the S. S. Feuer. Its acquisition date was December 21, 1955-- the price $469,000. 27 The Commissioner accepted 'Useful life' as three years and salvage value as $54,000. The 'reasonably consistent plan' required the setting aside of $378.65 a day for depreciation. If this were done, the 'aggregate of the amounts set aside' ($415,000) 'plus the salvage value' ($54,000) would equal the cost ($469,000). 28 During 1957 the S. S. Feuer earned some $289,340 as gross profit. To achieve this profit the Feuer had to be used and after each day of its use it had suffered wear and tear (depreciation) to the extent of $378,65. The $289,340 was not the net income on which the petitioner under the law was required to pay taxes. Its obligation rested upon net income and net income was obtained only after depreciation ($135,367.24) was deducted. Thus far there can be no variance in thought or legal result-- even by the Commissioner, the Tax Court or the majority. 29 But just as our much vaunted system of law on a national basis can be so easily ignored and repeudiated both by judicial and extra-judicial fiats, even more so is this true on an international basis. International law and contract to the contrary, the Suez Canal was closed to shipping in the latter part of 1956. Suddenly the price of ships soared, petitioner chose to forego the balance (approximately one and a half years-- or one-half of the agreed-upon useful life) of the contemplated three-year reasonable plan perod and sold the Feuer in June 1957 for $700,000 (actually $695,500 on closing). 30 The tax computation should have been simple. The cost ($469,000) less depreciation to the date of sale ($277,739.51) enabled petitioner because of its sale for $695,500 to obtain a capital gain of $504,239.51, which petitioner reported. 31 Particularly important is it to note that although the Suez crisis had radically affected the shipping situation and ship values, the Commissioner did not avail himself of the remedy of modification of useful life and after such redetermination then, but only then, of a redetermination of salvage value. Actually his own regulation prevented him from changing salvage value 'merely because of changes in price levels.' 32 Faced with this insurmountable barrier of Congressional enactment, precedent, and regulation, the Commissioner resolved the problem by the simple and much-used device of amending the statutes without the aid or even participation of Congress. To the depreciation allowance section he merely added in substance the words 'except in the event that the asset shall be sold prior to the expiration of its useful life, in which event no depreciation shall be allowed for the year in which such sale is made if the price realized exceeds the depreciated cost at the beginning of such taxable year.' 33 There would have been nothing wrong with such a statute; in fact, the Treasury had been trying to have similar provisions enacted for years. If, however, under our three branches of government system, the legislative branch does not function to the satisfaction of the executive and judicial branches, it is apparently incumbent on the latter two to take over the legislative powers. To be sure the taxpayer had planned his business transaction relyingg on the law as it was on the books at the time but sooner or later taxpayers must learn not to rely upon Commissioner's rulings, acquiescences, prior audits-- or even Commissioners and courts. 34 What possible rationale is available for the result reached by the majority? They first infer that the Commissioner is being quite magnanimous in being 'content' with only a 1957 disallowance as if taxes and the law were to depend on Commissioner's whims, caprices and contentment. They recognize that in so doing that the Commissioner was 'perhaps logically inconsistent' as indeed he was. In enacting his own ex post facto legislation, he might just as well have had a sale for more than cost eliminate all depreciation for three years or even from the date of acquisition. 35 To arrive at its result the majority relies exclusively on what it can only call a strong suggestion in Cohn v. United States, 259 F.2d 371 (6th Cir. 1958). It ignores (as it must) the many Supreme Court decisions and the statutes and regulations leading to a contrary result. When the Cohn case is read, no principle is found therein which could support the Commissioner's ruling. The taxpayers in Cohn had not fixed any salvage value for their property at the end of its useful life. For this value the District Court chose the sale price. There was no holding in Cohn that sale price during the course of useful life (here at the half-way point) should eliminate all depreciation in the year of sale. Nor can Cohn possibly be stretched to stand for the proposition that any 'reasonably consistent plan' adopted by a taxpayer is to be considered as abrogated by a sale. Any such conclusion would be in specific disregard of the statutes and regulations which provide for the methods of redetermination of useful life and salvage value. 36 In Randolph D. Rouse, 39 T.C. 70 (1962) (the Tax Court here held it 'necessary to recognize the Rouse case as dispositive of the question presented in this case') relied upon Cohn. Depreciation was disallowed only as to the houses which Rouse had sold. Since he had not adopted by 'reasonably consistent plan' or estimated any salvage value at the time of acquistion a situation somewhat similar to that in Cohn existed. Neither set of facts leads to a result which should be controlling or even persuasive here. 37 The Tax Court assumed, erroneously and without any supporting basis in my opinion, that 'changes in economic conditions have brought about new considerations by the courts of the old, wellestablished rules relating to depreciation allowances in the light of the rising market prices of used assets and the corresponding realization of large gains upon the resale of such used assets.' Massey Motors, Inc. v. United States, 364 U.S. 92, 80 S.Ct. 1411, 4 L.Ed.2d 1592 (1960) and Hertz Corp. v. United States, 364 U.S. 122, 80 S.Ct. 1420, 4 L.Ed.2d 1603 (1960) are cited as examples for this proposition. Actually neither case justifies any such conclusion. Both cases involved taxpayers whose business experience enabled them to determine an estimated salvage value based upon sales long before the end of the physical life of the automobiles used in their businesses. Instead of declaring the principle that sale automatically disqualified a taxpayer from claiming depreciation if the sale price was higher than the depreciated value at the beginning of the year, the Massey case, as to one of the taxpayers, used the estimated salvage value of $1,325 per car instead of the actual sales price of $1,380. Had the Supreme Court wished to declare the principle now urged by the Commissioner, it had every opportunity to do so merely by taking the actual sales price. However, it did not. 38 A thorough and well reasoned analysis of the depreciation problem is set forth in the trial court's decision in The Motorlease Corporation v. United States of America, 215 F.Supp. 356 (D.Conn. 1963). Although a panel of this court 'On the authority of, and for the reasons given in Fribourg Navigation Co. v. Commissioner, 2d Cir., Docket No. 28165, decided today,' reversed Motorlease, this case in reality supplies neither reasons nor authority. Motorlease reaches its result by saying 'neither the Code nor the regulations are dispositive of the issue.' To ignore the tax law as clearly written and the interpreting regulations is quite essential to a decision in contravention of such laws. This court in Motorlease does not believe that the transmutation of ordinary income into capital gains should be encouraged. Here is another example of the judicial enactment of a law which Congress itself over a long period of years had rejected. As pointed out in Evans v. Commissioner, 264 F.2d 502, 513 (9th Cir. 1959), rev'd on another ground sub nom. Massey Motors, Inc. v. United States, 364 U.S. 92, 80 S.Ct. 1411 (1960), 'The legislative history of section 117(j) shows that Congress (had) not receded from its original purpose. Congress was aware of the Commissioner's contention that taxpayers were converting into capital gains ordinary income arising from unreasonable deductions for depreciation.' After reviewing various legislative attempts to have gain treated uniformly as ordnary income the court added tersely, 'The recommendation was heard but not adopted.' 264 F.2d at 514. 39 In Motorlease the Commissioner did what he did not do in Massey. He took sale price as a new and substituted salvage value despite the specific requirement that it was to be 'determined at the time of acquisition.' Thus Motorlease as decided by this court in substance and actuality goes contrary to the decisions of the Supreme Court in Massey and Evans. 40 The factual distinction which makes Fribourg, even as the majority decide it, completely inapplicable to Motorlease, is that Fribourg admittedly does not deal with a business which consisted of short time use of property and its sale before the expiration of its physical life. Motorlease was analogous to, and should have been controlled by, Massey, Evans and Hertz. Yet there is no consideration of, or even mention of, those important cases or the legal principles declared therein. 41 Another series of illuminating beacons the light of which is more than adequate to reveal the right path are recent district court cases from other circuits. 42 In Wyoming Builders, Inc. v. United States, 227 F.Supp. 534, D.C.D.Wyo., the court was confronted with a refund case involving the disallowance of depreciation on property sold two months before the close of the taxpayer's fiscal year (November 1, 1957-- October 31, 1958). The property, an Air Force base housing project, had been set up on a seventy-five year lease basis, all improvements to remain the property of the government upon expiration or termination. When the property was sold to the government in 1958, the taxpayer, as here, reported as a capital gain the difference between the sale price and the cost less eight years' depreciation. The court considered the applicable statutes and regulations as well as the Cohn case and concluded that the government's theory that no depreciation occurred in the year of sale was unternable, saying in part: 43 'Depreciation occurs by use; the use of the property by the taxpayer until September 1, 1958, when the sale tool place, resulted in a continued depreciation of the property until September 1, 1958. The expense of using the property was properly allocated by the taxpayer to the period of time which was benefited by that asset, that is, from the beginning of the fiscal year in issue until the date of the sale. Depreciation is the measure of the cost of that part of the assets which has been used up or gradually 'sold' through wear and tear.' United States v. Ludey, 274 U.S. 295, 301, 47 S.Ct. 608, 71 L.Ed. 1054 (1927). 44 The conclusions of the court in Wyoming Builders are so consonant with the law that it is impossible to conjure up countervailing arguments. The court held that 'Neither the law nor the regulations permit this court to substitute the term 'sale price' for the regulation's term 'reasonable salvage value',' and that 'to sustain the disallowance of taxpayer's depreciation deduction would require an unwarranted judicial extension of the Code and Treasury Regulations.' The court believed, as do I, that, if the law is to be changed, 'Congress, not the Court, must enact adequate controls and set the standards.' 45 The history of the Wier Long Leaf Lumber Co., case, 9 T.C. 990 (1947) and the Commissioner's acquiescence (1948-1962), his non-acquiescence (1962) and its affirmance and partial reversal on other issues, 173 F.2d 549 (5th Cir. 1949), is relevant here. The Tax Court held that the sale of depreciated automobiles did not preclude any depreciation allowance in the year of sale and that 'mere appreciation in value due to extraneous causes (here the Suez situation) has no influence on the depreciation allowance, one way or the other.' 46 Kimball Gas Products Co. v. United States, 63-2 U.S.T.C. P9507, W.D.Tex. 1962 was brought for a refund for overpayment of taxes due to the Commissioner's disallowance of depreciation in the year of sale (1959) of properties acquired in 1955 which for depreciation purposes had useful lives of seven years. The Commissioner disallowed one-half of the depreciation claimed in the year of sale. The court held that the taxpayer was entitled to the full depreciation and a tax refund. 47 The taxpayer in S & A Company v. United States, 218 F.Supp. 677 (D.Minn., 1963), a company manufacturing and selling outboard motors, sold its land and depreciable assets on April 1, 1956 to a company which continued the business. It claimed deduction for depreciation from September 1, 1955 to April 1, 1956 in its 1955-1956 fiscal year. The issue framed there was identical with the issue here. The court reviewed in detail the history of the tax laws material to the subject, the Regulations, the Massey, Hertz, Cohn and Wier Long Leaf Lumber cases and came to the conclusion that the Commissioner improperly disallowed the deduction. In the course of its opinion the court pointed out the distinguishing features of the Cohn case (assuming it to be correct), namely, that although 'a sale of an asset at the end of its useful life for an amount in excess of its undepreciated cost at the beginning of the year of sale will justify a redetermination of salvage value,' it is equally clear that the Tax Court held that sale of assets prior to the end of 'useful life' at a price in excess of undepreciated cost at the beginning of the year of sale does not justify a determination of salvage value because the excess of price over cost is mere appreciation in value. 48 Refutation cannot be found in saying that these are only district court decisions. They are decisions which apply the tax statutes as they were written and the Supreme Court cases for the principles expounded therein. They do not attempt to ascribe to Congress an intent not enacted into law. Rather the legislative history has disclosed that Congress had been aware of the problem and had intentionally chosen not to act. 49 The fallibility of the majority opinion is that it completely ignores that law. The majority say 'Because our income tax system is based on annual reporting * * * the proper amount of depreciation to be taken each year must depend on estimates.' They should have taken notice of the statutory words requiring that salvage value be 'determined at the time of acquisition'-- of necessity, an estimate. They then interpret the Commissioner's claim to be that it is 'unreasonable to follow an estimate when one knows that estimate is incorrect.' To impute such a claim to the Commissioner is to imply that he is unable to read, understand and follow the specific provisions of the law under which he can always seek to rectify an incorrect estimate. Instead of pursuing such a remedy here, the Commissioner concedes the accuracy both of useful life and the salvage value 'determined at the time of acquisition.' 50 Finding no support in law for its position and forced to concede that 'the increment in the Feuer's value resulted from a fortuity normally associated with capital gain,' the majority satisfy themselves with the belief that 'no injustice results from denying the taxpayer an allowance he knows to be fictional at the time he claims it.' Any such legal philosophy has the effect of writing depreciation allowances and depreciation as a matter of sound accounting out of the tax laws. Possibly they intend by their opinion to do so because under such circumstances they say 'the economic factgors responsible for the lack of expense to the taxpayer should be of no concern in arriving at the depreciation allowance.' This approach can scarcely be reconciled with their comment that 'If depreciation schedules had to be revised each time an asset's market value rose or declined, an intolerable strain would be placed on accounting methods.' It was for this very reason that the Regulation, 1.167(c), provided that 'Salvage value shall not be changed at any time after the determination made at the time of acquisition merely because of changes in price levels.' Of course, sales price can easily be compared with the depreciated cost at the beginning of the year. But there is no law or regulation which declares that in such event no depreciation shall be allowed if the sales price is higher. Therefore, because this decision seems to be completely at variance with the statutes and the applicable decisions, I must dissent.

IN THE SUPREME COURT OF TENNESSEE AT JACKSON (HEARD AT DYERSBURG) FILED March 8, 1999 STATE OF TENNESSEE, ) Cecil Crowson, Jr. ) Appellate Court Clerk APPELLEE, ) ) v. ) NO. 02S01-9709-CC-00079 ) CAROLYN L. CURRY, ) ) APPELLANT. ) DISSENTING OPINION I disagree with the majority's holding in this case that the district attorney general abused his discretion in denying pretrial diversion. The defendant has committed an extremely serious offense in this case. She has admitted to embezzling approximately $27,400.00 from her employer. Her crime was not an isolated incident but a complicated, calculated, and deliberate criminal scheme that occurred repeatedly over a course of two years until she was ultimately caught. Pretrial diversion is a legislative largess as well as extraordinary relief. Pretrial diversion relieves criminal defendants of the burden of being tried for or convicted of a crime for which they are guilty. Once defendants have completed a diversion program, they are under no legal obligation to disclose their offenses to prospective employers, and their public records are expunged. Mere eligibility for diversion should not provide a presumption for program suitability. 1 Defendants, therefore, should at all times carry the burden of establishing suitability given the extraordinary nature of diversionary relief. 1 Pursuant to Tenn. Code Ann. § 40-15-105, defendants committing extremely serious offenses such as aggravated assault, voluntary manslaughter, vehicular homicide (not involving intoxication), kidnapping, robbery, arson, and aggravated burglary may be eligible for pretrial diversion.  The decision to grant pretrial diversion is within the sole discretion of the district attorney general, subject to review by the trial court for an abuse of prosecutorial discretion. Tenn. Code Ann. § 40-15-105(b)(3); State v. Hammersley, 650 S.W.2d 352, 353 (Tenn. 1983). To find an abuse of discretion by the prosecutor, a reviewing court must determine that the record is devoid of any substantial evidence supporting the prosecuting attorney's decision. Id. at 356; State v. Carr, 861 S.W.2d 850, 856 (Tenn. Crim. App. 1993) (emphasis added) . The prosecution's decision is presumptively correct, and a reviewing court may not simply substitute its findings for those of the prosecutor. Id. Accordingly, if the record would support either a grant or a denial the trial court must defer to the prosecuting attorney's decision. Id. (holding if the record would support either a grant or denial of pretrial diversion, the trial court must defer to the prosecutor's discretion). The pretrial diversion statute does not enumerate specific criteria that a prosecuting attorney should use when making pretrial diversion determinations. The legislature apparently recognized the extraordinary relief provided by the pretrial diversion statute and intended to provide prosecuting attorneys substantial discretion in making pretrial diversion decisions. This grant of discretion would presumptively include the broad discretion to determine not only the relevant criteria and considerations of each case but also the weight to be afforded the relevant considerations of each diversionary decision. Courts, however, have judicially imposed general considerations to guide a prosecuting attorney's decision. In two recent Supreme Court decisions, this Court delineated the relevant considerations as follows: Among the factors to be considered in addition to the circumstances of the offense are the defendant's criminal record, social history, the physical and mental conditions of the defendant where appropriate, and the likelihood that pretrial diversion will 2  serve the ends of justice and the best interest of both the public and the defendant. State v. Pinkham, 955 S.W.2d 956, 959 (Tenn. 1997); State v. Herron, 767 S.W.2d 151, 155 (Tenn. 1989) (quoting State v. Hammersley, 650 S.W.2d 352 (Tenn. 1983)). These factors are among those that reflect on the defendant's "amenability to correction" or potential for rehabilitation. The "potential for rehabilitation," contrary to the majority's assertion, is not a "factor" that must be clearly articulated and stated in the record. Pinkham, 955 S.W.2d at 959. In the case now before us, the prosecuting attorney set out the following reasons in support of the pretrial diversion denial: (1) the long-term and continuing nature of the offense; (2) the fact that the circumstances of the offense reveal a systematic scheme to commit crimes which "manifest a criminal intent for a long period of time" and not a crime of impulse; (3) the magnitude of the offense, noting the amount of money ($27,368.73) embezzled during a period from July 1, 1993 to July 11, 1995; (4) the deceitful nature of the criminal violations; and (5) the deterrent effect of crimes to defraud city or municipal organizations ("[w]e cannot believe that it would be in the best interests of the public, the defendant and justice to overlook a criminal scheme of this proportion and grant pre-trial diversion to the defendant."). The reasons cited by the prosecutor are well-supported by the record and have been held sufficient for denials of pretrial diversion in numerous published opinions involving similar crimes and crimes of a less serious nature. The prosecutors' decisions to deny diversion in the cases discussed below neither explicitly weighed the relevant factors nor mentioned the defendant's potential for rehabilitation, previous criminal record, or social history. Moreover, numerous 3 cases have consistently held that pretrial diversion is inappropriate when the applicant's criminal intent is sustained or repeated.2 In State v. Helms, 720 S.W.2d 474 (Tenn. Crim. App. 1986), the defendant was charged with a crime of a continuing nature whereby the defendant fraudulently obtained $3,271.00 from the State of Tennessee. The district attorney denied pretrial diversion based on the following reasons as listed by the court: 1) the long-term, continuing nature of the offense; 2) the deceitful nature of the criminal violations involved; 3) the deterrent effect of prosecution, and 4) the strong public policy against diversion where the State is defrauded. Id. at 475. The trial court found the denial to be an abuse of discretion. The Court of Criminal Appeals reversed, approving the basing of a denial of diversion on the circumstances surrounding the offense and on deterrence. The court held that there was substantial evidence in the record to support the denial. Id. In State v. Holland, 661 S.W.2d 91 (Tenn. Crim. App. 1983), the defendant was charged with defrauding Madison County by presenting false weight tickets purporting to represent gravel delivered to the Madison County Highway Department. The district attorney denied diversion based on the 2 See State v. Lovvorn, 691 S.W.2d 574, 576-77 (Tenn. Crim. App. 1985) (denying diversion on the basis that the theft of $3,000.00 occurred over an eight-month period and was not a crim e of im pulse); State v. Poplar, 612 S.W.2d 498, 501 (Tenn. Crim. App. 1980) ("It was not intended that this extraordinary relief be granted routinely to first offenders but only to those who can show that they were above-the-average citizens before impulsively committing an offense . . . ."); see also State v. Holland, 661 S.W.2d 91, 93 (Tenn. Crim. App. 1983) (denying request for diversion based on extensive criminal activities that were not crimes of impulse but "required muc h planning , deliberation and co operation ."); State v. Watkins, 607 S.W .2d 4 86 (T enn . Crim . App. 19 80); Murra y v. State, 586 S.W .2d 839 (Tenn. Crim . App. 1979)). 4 following valid grounds: (1) the offenses involved planning, deliberation, and cooperation among several people; (2) the crimes involved deception and deceit and were not crimes of impulse; and (3) the serious nature of the offenses would be negated by placing the defendant on pretrial diversion. The appellate court found substantial evidence in the record to support the denial and upheld the trial court's finding that there was no abuse of discretion. In State v. Carr, 861 S.W.2d 850 (Tenn. Crim. App. 1993), the defendant's crimes were very similar to the crimes in the case now before us. Pretrial diversion was denied based on the following factors: (1) The circumstances show "a systematic scheme to defraud . . . not a crime of impulse," involving considerable planning which would have continued absent discovery. (2) The magnitude of the offense, noting the amount of money ($23,370.85) reflected by a partial audit covering August 1, 1988, through October 31, 1989. (3) The number of individual claims and continuing nature of the offense. (4) The particular need for deterrence because of the considerable opportunity for Medicaid fraud, which is serious and prevalent. (5) The defendant's statements indicate little remorse and failure to accept responsibility. Id. at 854. The appellate court stated that "the intent of the legislature was to give the prosecutor, not the court, the authority to decide which defendants should proceed to trial and which ones should be diverted before trial. Therefore, in a close case, the courts should defer to the prosecutor's decision." Id. at 858. The appellate court held that substantial evidence in the record supported the denial based on the circumstances of the crime and the need for deterrence. 5  In State v. Lutry, 938 S.W.2d 431 (Tenn. Crim. App. 1996), the defendant was charged with forgery for signing a student out of school. Pretrial diversion was denied based on: (1) the nature and the circumstances of the crime; (2) the defendant's behavior since the arrest; and (3) general deterrence. The appellate court concluded that forgery or cases involving fraud by their very nature need no extrinsic proof to establish the need for deterrence. The court found evidence in the record to support the three reasons cited by the district attorney for the denial and affirmed the district attorney's decision to deny pretrial diversion. The circumstances of a criminal offense alone have been held to justify denials of pretrial diversion. In State v. Watkins, 607 S.W.2d 486 (Tenn. Crim. App. 1980), the defendant was arrested for possession of three pounds of marijuana. The appellate court held that "possession of three pounds of marihuana . . . is indicative of more than a casual flirtation with marihuana and is sufficient basis for the refusal of [pretrial diversion]." Id. at 489. In State v. Sutton, 668 S.W.2d 678 (Tenn. Crim. App. 1984), the defendant was indicted for unlawfully concealing a stolen automobile valued at over $200.00 and for altering a serial number. The nature of the defendant's crime was ongoing. The appellate court held that ongoing criminal activity fits into "social history which is a valid factor for consideration." Id. at 680. The court noted that pretrial diversion was an extraordinary largess of the law and affirmed the denial of diversion based upon the circumstances of the offense. In the case now before us, I believe that the record is replete with substantial evidence supporting the district attorney's reasons for denying pretrial diversion. Utilizing the factors set forth by this Court's recent decision in State v. Pinkham, 955 S.W.2d 956 (Tenn. 1997), I would find the following: 6  1. The district attorney more than adequately addressed the circumstances of the offense and the serious nature of the offense; 2. The defendant's social history indicates that for at least two years the defendant was involved in a sustained criminal scheme to defraud a city and embezzle a substantial amount of money; 3. The defendant's physical and mental condition were likely not appropriate factors for consideration in this case; and 4. Pretrial diversion would not serve the best interest of both the public and the defendant as diversion would diminish the serious nature of this crime and diminish the public's confidence in the criminal justice system's ability to address crimes of a serious and ongoing nature. I would hold that the district attorney's letter denying diversion more than adequately addressed the criteria set forth in Pinkham, 955 S.W.2d at 959-60, even though the letter could have been more detailed. The reasons cited for the denial are similar or greater in both substance and form to grounds held adequate in numerous published cases. The circumstances of the defendant's offense and the need to deter fraud as well as thefts of large sums of money are sufficiently overwhelming to justify denial of pretrial diversion in this case. Moreover, the defendant's offenses are more serious than offenses discussed in published cases in which denials have been upheld based solely upon the circumstances of the offense and the need for deterrence. The majority's holding allows the defendant to avoid being tried for her crimes merely because the prosecutor failed to explicitly include in the letter 7 denying pretrial diversion words referencing, as the majority states, "the defendant’s favorable social history, lack of a criminal record, and potential for rehabilitation." (emphasis added). I disagree with the majority's finding that the defendant has a "favorable" social history and background. I believe that someone who continually commits serious crimes involving deception, planning, and fraud over a two-year period of time has a less than favorable social history, has an extensive criminal background, and is a poor candidate for rehabilitation. Moreover, the defendant ceased her criminal activity only when she was caught, and her criminal activity would likely have continued had she not been caught. I disagree with the majority's decision that an abuse of discretion occurred merely due to a district attorney's failure to specifically or explicitly address non- statutory criteria. I further disagree with the majority's concern that a remand creates a danger "that new reasons for consideration will be introduced during the hearing." Unlike judicial diversion, applications for pretrial diversion generally occur while a criminal proceeding is in its infancy. Witnesses have not testified, discovery is ongoing, and a presentence report has not been prepared. I believe that the public's need for protection from offenders of serious crimes and the public's interest in avoiding the depreciation of the seriousness of crimes outweigh any prejudice a defendant may suffer if additional but valid and pertinent considerations are later introduced which would render the defendant an unsuitable candidate for diversion. Accordingly, I believe a rule which promotes accuracy and substance over form would be a better rule.3 Pretrial diversion is a largess and is not a right. I question whether the legislature intended that a criminal committing a series of serious, sustained, 3 Pursu ant to Te nn. Cod e Ann. § 40-15-1 05(a)(3 ) and -10 5(d), it appe ars that a prosecuting attorney could terminate the trial court's decision to order the memorandum of und ersta nding by sim ply pro fferin g new and v alid co nsid eratio ns w hich indica te tha t a de fend ant is an uns uitable can didate for p retrial diversion . Accord ingly, perm itting a prose cuting atto rney to testify as to all considerations that went into the decision-making process promotes accuracy and judic ial eco nom y. 8 planned, and deceptive crimes over a two-year period of time automatically be granted diversion merely because a district attorney failed to employ a preferred term in the letter denying diversion. The majority's holding could effectively allow defendants committing serious offenses such as manslaughter, kidnapping, and vehicular homicide to avoid prosecution merely because a district attorney commits a non-prejudicial omission affecting neither a constitutional nor a statutory right. JANICE M. HOLDER, JUSTICE 9 

98 F.Supp.2d 793 (2000) Lee Novell LAFFITTE, v. MAERSK LINE, LIMITED. No. Civ.A. G-99-331. United States District Court, S.D. Texas, Galveston Division. June 8, 2000. Ronald L. White, White, Mackillop, Houston, TX, for Ron White, mediator. Richard Lee Melancon, Melancon and Hogue, Friendswood, TX, Michael W. Hogue, Melancon and Hogue, Friendswood, TX, for Lee Laffitte, plaintiff. James Richard Watkins, Royston Rayzor, Galveston, TX, for Maersk Line, Limited, defendant. FINDINGS OF FACT AND CONCLUSIONS OF LAW KENT, District Judge. This cause came on for a non-jury trial April 17-19, 2000. Having carefully considered *794 all pleadings, the trial record, all exhibits, the credibility of each witness and all post-trial submissions, on the basis of a preponderance of the evidence and applicable law, the Court hereby enters its Findings of Fact and Conclusions of Law. I. FINDINGS OF FACT A. NATURE OF THE CASE 1. This is a Jones Act and general maritime law action brought by Lee Laffitte, electrician of the M/V MAERSK CALIFORNIA, against Defendant MAERSK LINE, LTD. ("Maersk"). Plaintiff filed this case alleging that as a result of Maersk's negligence and the unseaworthiness of the M/V MAERSK CALIFORNIA, he sustained low-back, neck, and ankle injuries when he fell off one of the vessel's catwalks on the night of April 18, 1999. Defendant denied that Plaintiff fell aboard its vessel and denies that Plaintiff has suffered injury. B. PARTIES AND JURISDICTION 1. Plaintiff, Lee Laffitte, is a resident of the State of Alabama. He signed on the MAERSK CALIFORNIA as an electrician in Charleston, South Carolina on March 31, 1999. He departed the vessel, after having been fired by the Chief Engineer and Captain, on April 19, 1999 in Iquique, Chile. The Court finds that on April 18, 1999, the crew and officers of the M/V MAERSK CALIFORNIA, including Plaintiff himself, were in the employ of Maersk, and that Maersk owned and operated the M/V MAERSK CALIFORNIA. Maersk Line, Ltd. is a corporation having its principle place of business in Norfolk, Virginia. It owns and operates oceangoing vessels, including the MAERSK CALIFORNIA. 2. The Court finds this case is properly brought within its admiralty and maritime jurisdiction pursuant to 28 U.S.C. § 1331 et seq. Defendant has asserted a personal jurisdiction defense. By Order dated June 2, 2000, the Court denied Defendant's Motion to Dismiss for Lack of Personal Jurisdiction. The Court herein adopts that Order, and finds that it has jurisdiction over all of the parties, and that proper venue for this suit is in this District and before this Court. C. LIABILITY 1. Summary of Proceedings and Claims Asserted. Plaintiff commenced this suit on June 2, 1999, against his employer Maersk, alleging negligence under the Jones Act, 46 U.S.C. § 688, and unseaworthiness of the M/V MAERSK CALIFORNIA under the general maritime law. Mr. Laffitte alleged that on April 18, 1999 he slipped and fell several feet off the CALIFORNIA's starboard catwalk near Bay 24, while he was attempting to climb down the catwalk in the dark. Mr. Laffitte alleged that as a result of his fall, he sustained injuries to the discs in his low back at L3-L4, L4-L5, to both of his ankles, and to a disc in his neck at C5-C6. Defendant hotly contests such allegations. 2. Evidence Reviewed and Resulting Findings. a. Mr. Laffitte is a thirty-five year old black man from Mobile, Alabama. He completed the ninth grade. He began going to sea in 1986, and has been shipping primarily in the engine department as an electrician since that time. The Court finds that Mr. Laffitte has substantial experience aboard numerous sea-going vessels. b. Mr. Laffitte joined the MAERSK CALIFORNIA as the Chief Electrician in Charleston, South Carolina on March 31, 1999. Mr. Laffitte was hired by Defendant Maersk out of the Mobile, Alabama Seafarer's International Union ("SIU") hall. Mr. Laffitte was hired as a permanent employee; the Articles of Agreement provided for a four-month, overseas hitch to various ports in South America. *795 c. As electrician aboard the CALIFORNIA, Mr. Laffitte was primarily responsible for checking and maintaining the temperatures of refrigerated boxes ("reefers"), which made up the bulk of the vessel's cargo. At approximately 8:00 p.m. on the night of April 18, 1999, while in the cargo control room, Mr. Laffitte told Chief Mate Tom McGrath that he was going outside on deck to check the temperature of one of the reefers. At that time, Mr. Laffitte requested permission to turn on the hatch coaming lights for safety, but the Chief Mate refused. After being refused the ability to use the lights, Mr. Laffitte went outside on deck to check the reefer. To do so, he had to climb up a ladder six to eight feet onto a catwalk, walk a few feet in the dark, and then had to climb down into Bay 24 where the reefer was located. It is undisputed that the lighting down inside the bay was very bright. When Mr. Laffitte came out of the bay back onto the catwalk and into the dark, he was temporarily blinded. Mr. Laffitte attempted to climb down the catwalk ladder to the deck. The catwalk that night was more likely than not spattered with grease; the grease was commonly thrown over the deck when the gantry crane operated. The gantry crane had been operated the night before and no one had cleaned up the grease thrown. As Mr. Laffitte attempted to come down the ladder, his right foot slipped in grease at the top of the ladder, causing his hand to slip free of the ladder rail, and causing him to fall six to eight feet to the deck. Mr. Laffitte landed initially on his feet, but then his legs buckled and he fell onto his rear end, then onto his back and right shoulder. Mr. Laffitte felt immediate pain in his neck, low back, right shoulder, and ankles. After lying there for approximately five minutes, Mr. Laffitte made his way back into the cargo control room. There he spoke with the Chief Mate and told the Mate that he had fallen. The Captain came into the room at that time. Mr. Laffitte asked the Captain if the Captain had seen the fall, to which the Captain replied: "I am not going to be a witness to that." The Captain instructed Mr. Laffitte to see the medical officer. Mr. Laffitte instead went up to his room. On the way, he saw Chief Steward Whitfield, who inquired as to why Mr. Laffitte was so dirty. Mr. Laffitte told Whitfield about the fall. Mr. Laffitte did not see the medical officer because the medical officer was asleep. Mr. Laffitte went to his room, rubbed himself with alcohol, took some Tylenol, but could not sleep. Mr. Laffitte did not receive medical care until the next evening when the vessel docked in Iquique, Chile. d. Defendant does not dispute that the night of April 18, 1999 was very dark. At trial the Court took judicial notice that there was no moon on April 18, 1999. The Court now finds that April 18, 1999 was a very dark night with no moon and no ambient light. The Court also finds that, when turned on, the hatch coaming lights aboard the CALIFORNIA provide sufficient light for an individual to move about safely at night about the deck of the CALIFORNIA. e. The Defendant does not dispute that it was Mr. Laffitte's job to check the reefer each night at about 8:00 p.m., and does not dispute that Mr. Laffitte did so on the night he allegedly fell. The Court finds that Mr. Laffitte was acting in the course and scope of his job as electrician aboard the CALIFORNIA on the night of April 18, 1999. f. Regarding the use of the hatch coaming lights, none of the witnesses for the Defendant disputed that the lights were off on the night of Mr. Laffitte's alleged fall. At trial, the Defendant called Captain John McFadden and Chief Mate Tom McGrath. Both witnesses agreed that it would be safer to have the lights on at night out on deck, but disputed that it would be unsafe to be out on the deck at night without the lights. Two other witnesses, Chief Engineer John McGrath and First Engineer Soucy, also testified in deposition that it is safer to have the lights *796 on at night while out on deck. Chief Engineer McGrath and First Engineer Soucy further conceded that it is safer to climb ladders and check reefers with the lights on. In light of the testimony, the Court finds that it would have been safer had the lights been on the night of April 18, 1999. The Court further finds that the lights were not on the night in question. g. Both the Captain and the Chief Mate testified that the hatch coaming lights interfere with navigation of the vessel. Mr. Laffitte disputed this during his testimony and offered a document authored by Defendant (Plaintiff's Exhibit 9) which clearly states that the hatch coaming lights do not interfere with navigation. According to the testimony, the hatch coaming lights are situated to provide ambient light for personnel on deck. In light of the testimony and documentary evidence, the Court finds that the hatch coaming lights do not interfere with navigation, and that such lights could have, and should have, been on the night of Plaintiff's alleged accident. h. With regard to whether the Plaintiff requested that the lights be turned on, Plaintiff testified that he asked the Chief Mate to turn on the lights prior to going out on the deck on the night in question. Plaintiff testified the Chief Mate refused. Plaintiff testified that he then requested that he be allowed to call the bridge to have the lights turned on, but again the Chief Mate refused. The Chief Mate testified that he never refused to turn on the lights. The Chief Mate's testimony is suspect. The Chief Mate did not make a credible witness. During cross examination of the Chief Mate, Plaintiff's counsel exposed several inconsistencies in the Chief Mate's rendition of the facts of this case. Further, Dean Jackson, an AB watchstander who is no longer employed by Maersk, testified that he is absolutely positive that he heard Mr. Laffitte, on the night of April 18, 1999, tell the Captain that the Chief Mate had refused to turn on the lights and that the Chief Mate's refusal had caused him to fall. The Court finds the testimony in favor of Plaintiff credible. The Court therefore finds that the Chief Mate indeed refused to turn on the lights as Mr. Laffitte requested prior to his fall on April 18, 1999. i. The alleged fall of Plaintiff was unwitnessed. The Court finds that Plaintiff was a credible witness. The Court finds that, with few exceptions, the accident report filled out by Plaintiff the day after his fall is consistent with his testimony. Plaintiff told the Chilean doctor, the day after the accident, that he had fallen from the catwalk. The Court finds that Plaintiff's story regarding the way in which he fell has remained consistent to the present date. The Court thus finds, by a preponderance of the evidence, that Plaintiff indeed fell in the manner he testified to at trial. With regard to the condition of the deck and cleanliness of the ladder at the time in question, Plaintiff, AB Jackson, the Chief Engineer, First Engineer, and Chief Mate testified that the gantry crane out on deck throws grease, and that grease, oil, and grime are usually thrown by the crane onto the deck and catwalks. It is undisputed that the gantry crane was operated for a lengthy time period loading reefers the day before Plaintiff's accident. Moreover, AB Jackson testified that he would have been the individual who would have been ordered to clean any grease on the deck and catwalks after the crane was used on April 18, 1999. Mr. Jackson testified that he was not ordered to do so on that day. Defendant offered no evidence to the contrary. The Court therefore finds that, as the Plaintiff testified, that there was more likely than not grease on the handrails and platform of the catwalk platform from which Plaintiff fell on the night of April 18, 1999. j. With regard to the nonskid, or lack thereof, on the ladder platform and handrails, the Court finds, from the pictures presented at trial, that the ladder handrail in question lacks any substance to prevent an individual's hand from slipping. The pictures also reveal, consistent with Plaintiff's *797 testimony, that the handrails are worn and rusty. According to the pictures presented, the Court finds that the ladder platform is made of a grating material, with only a narrow portion on the end of the platform not made up of this grating. The Court finds that the narrow portion did not have any nonskid substance on it on the night in question, and nonskid may have prevented Plaintiff from slipping and falling. The Court thus finds that the ladder handrails and platform were unsafe, and contributed to Plaintiff's fall. k. Defendant took the position at trial that Plaintiff was a troublemaker who fabricated his accident after he was fired on the morning of April 19, 1999. In support, Defendant offered the testimony of the Chief Engineer, Chief Mate, Captain, and First Engineer. All of these witnesses testified that Mr. Laffitte was fired on the morning of April 19, 1999 for failing to change out a condenser fan motor as ordered, and that Mr. Laffitte stated that he had slipped, fallen, and hurt himself after he was fired. The Court observes that Plaintiff appears to be touchy, defensive and arrogant and the officers' collective dislike of him was palpable at trial. Yet safety should not be predicated upon popularity and the Court firmly believes that the testimony of both the Chief Officer and Master was colored by their antipathy. Defendant offered no written reprimands issued to Plaintiff prior to his firing. On this issue, Plaintiff offered the testimony of AB Jackson and Chief Steward Whitfield. Both testified that they saw Plaintiff the night of April 18, 1999 and heard Plaintiff complaining about his fall. The Court found these witnesses credible. On cross examination at trial, the Captain conceded that when he came to the cargo control room on the morning Mr. Laffitte was fired, the first thing Mr. Laffitte said to him was that Mr. Laffitte was trying to tell the others that he was hurt, but all they wanted to do was fire him. The Court also considers the credibility of the Chief Mate as discussed above, the undisputed evidence that the Chief Mate was responsible for the cleanliness of the deck, the testimony that the Chief Mate decided to leave Defendant's employ after Plaintiff's accident and after thirteen years of service to become a housepainter, the undisputed fact that the Captain also left the employ of Defendant after Plaintiff's accident, and the undisputed fact that the Chief Mate and the Chief Engineer are brothers. Given the testimony and evidence presented, the Court finds that Plaintiff indeed reported his accident on the night of April 18, 1999 as he testified, which was prior to his being fired on April 19, 1999. The Court further finds (and concludes) that even if Plaintiff failed to report his accident, the accident occurred as Plaintiff testified. l. The preponderance of the evidence supports and the Court finds (and will hereinafter conclude) that Mr. Laffitte indeed fell off the catwalk on the CALIFORNIA on the night of April 18, 1999 and that the cause of Mr. Laffitte's fall was the Defendant's negligence in failing to provide a safe place to work and the unseaworthiness of the vessel. The Court finds the Defendant and the vessel 50% liable for Plaintiff's stated losses, and Plaintiff 50% liable for his own losses. D. EVIDENCE ON MEDICAL CAUSATION, CURE AND FUTURE MEDICAL 1. Dr. Thomas Dempsey, the Defendant's IME doctor, was recognized as an expert by the Court under Fed.R.Evid 702. Dr. Dempsey saw Plaintiff twice, the first time in November of 1999. Doctor Dempsey diagnosed Plaintiff with "degeneration" in the neck and back, but testified that he did not know whether he had actually reviewed Plaintiff's MRI films prior to reaching his diagnosis. Dr. Dempsey testified that Plaintiff's EMG test results showed radiculopathy and C5-C6, L4-L5 nerve root irritation. Dr. Dempsey further testified that the "degenerative changes" in Plaintiff's back and neck currently *798 could be causing Plaintiff pain. He further stated that the findings in Plaintiff's neck and back could have been caused by trauma, but did not think the history given by Plaintiff was consistent with the findings. 2. Dr. James A. Ghadially is Plaintiff's treating physician and was also recognized by the Court as an expert under Rule 702. Dr. Ghadially first saw Plaintiff ten days after his accident. Dr. Ghadially opined that, in all reasonable medical probability, Plaintiff's fall from the catwalk on April 18, 1999 caused Mr. Laffitte to suffer herniations in his low back at L3-L4 and L4-L5, a herniation in his neck at C5-C6, and injury to both of his ankles. Dr. Ghadially opined that Plaintiff was too young for the changes in his back to be merely a result of degeneration and age, as Dr. Dempsey had testified. Dr. Ghadially also noted that the Chilean doctor who saw Plaintiff the day after the accident, at the request of the Defendant, had also diagnosed a herniation in Plaintiff's neck at C5-C6. Dr. Ghadially further testified that all of the tests and studies performed on Plaintiff, including MRI, EMG, NCV, and discograms, consistently indicated herniations in Plaintiff's neck and back. 3. Because of the fall, Plaintiff underwent an ankle arthroscopy and a sinus tarsi decompression of his left ankle. Plaintiff's fall also necessitated the repair of a torn ligament in his left ankle. Dr. Ghadially testified that he is familiar with the cost of medical treatment in the Houston area. Dr. Ghadially further testified in all medical probability that Plaintiff would need an anterior discectomy and fusion for the herniation in the neck, at a cost of approximately $50,000. Dr. Ghadially also testified that Plaintiff would need attendant care and prescriptions as a result of the neck surgery in the amount of approximately $3,000, with approximately $1,000 per year needed over the next forty-one years for prescriptions. With regard to the Plaintiff's low back, Dr. Ghadially testified that Plaintiff will have to undergo a one or two-level global fusion, which will cost, in total, between $75,000 and $100,000. Mr. Laffitte testified that he would have the recommended surgeries if they were paid for; Dr. Ghadially testified that Plaintiff had consistently requested that the surgeries be done. Whether Mr. Laffitte has the surgeries or not, Dr. Ghadially testified that Plaintiff should be restricted to sedentary or light duty for life as a result of the fall. The Court finds Dr. Ghadially's testimony substantially persuasive, questioning however whether Plaintiff will actually elect to undergo further surgery. 4. With regard to Mr. Laffitte's outstanding medical bills, Dr. Ghadially testified that, being familiar with the charges for such services in the Houston area, his own outstanding bill of $6,586.85, the bill in the amount of $2,012.63 from Gulf Coast Pharmacy, the bill of $21,582.47 from East Side Surgery Center, the bill for $2,340.00 from U.S. Anesthetic Services, P.A., the bill of $6,992.00 from Downtown Plaza Imaging, the bill of $625.00 from Pasadena Anesthesiology Consultants, and the bill for physical therapist Ronnie Handwerger for $7,811.71 (all outstanding bills were entered as Plaintiff's Exhibit 32) are reasonable and necessary expenses for medical cure incurred by Plaintiff and were necessary as a result of his fall aboard the CALIFORNIA on April 18, 1999. In view of the totality of the evidence, the Court agrees and so finds, and concludes that Plaintiff should be awarded such amounts as cure, in the amount of $47,950.66, in full. 5. The Court is not persuaded by Defendant's IME that the surgical back and neck condition with which Mr. Laffitte is now faced is the result solely of degeneration, rather finding that degeneration plays a part in Plaintiff's current complaints. The evidence is undisputed that Mr. Laffitte was working at full duty without any complaints or limitation, and was earning an average of approximately $35,000.00 per year gross in the five full calendar years prior to the accident at issue. *799 The Court also considers that Defendant's IME could not say whether he saw Plaintiff's MRI films, and could not say who was paying his bill or how much he was being paid. Perhaps most importantly, the Defendant's IME agreed that Plaintiff's "degeneration" could have been caused by trauma. Viewing the totality of the medical and work history evidence, the Court finds and concludes that, in all reasonable medical and legal probability, Mr. Laffitte may have to undergo the recommended surgeries and follow-up care described by Dr. Ghadially and may have to incur the charges for the same as the legal and proximate result of his fall aboard the CALIFORNIA, which in turn the Court finds and concludes was to the stated extent legally and proximately caused by the Defendant's negligence, and by Plaintiff's negligence, 50% each. E. ECONOMIC DAMAGES 1. The Court recognized Dr. Kenneth G. McCoin, Plaintiff's economist, as an expert in evaluation of economic loss pursuant to Rule 702. The Court finds, based upon the testimony of Dr. McCoin, using the standards of Culver II and its progeny, and based on the evidence before the Court, that Plaintiff has sustained past and future economic losses, inclusive of lost wages and fringe benefits. 2. Dr. McCoin testified that, based on U.S. Government Life Tables, Plaintiff had a work life expectancy of 25.6 years and a life expectancy of 34.5 years at the date of trial. Dr. McCoin further testified that Plaintiff had averaged $37,849.00 in gross wages for the years 1994, 1995, 1996, 1997, and 1998, expressed in 1998 dollars, and deducting for Social Security payments and income taxes. To calculate future losses, Dr. McCoin used a below-market discount rate of one and one-half percent below average. 3. Dr. McCoin calculated that Plaintiff sustained a loss of $32,307.00 in past wages at the time of trial. Dr. McCoin also testified that Plaintiff will suffer past and future economic losses totaling $722,424.00, assuming Plaintiff begins working on July 1, 2000 at an $8.00 per hour job. Dr. McCoin's figure includes $28,627.00 in lost household services. The Defendant presented no economist. The Court finds Dr. McCoin's testimony somewhat persuasive. The Court finds and concludes that Plaintiff has sustained economic losses, past and future, as a legal and proximate result of Maersk's negligence and the unseaworthiness of the vessel in the amount of $350,000.00, for which Defendant bears 50% liability, or $175,000.00 4. Based on the totality of the evidence in this case, the Court further finds that the Plaintiff has sustained the following losses by a preponderance of the evidence, in addition to past and future wage related losses found above. Defendant Maersk, as owner, operator, and employer of the crew of the MAERSK CALIFORNIA, is 50% liable for the following: a. for the physical pain, mental anguish, and suffering sustained by Lee Laffitte from his injuries on April 18, 1999 and through the time of trial, the amount of $200,000.00, or $100,000.00; b. for the physical pain, mental anguish, and suffering sustained by Lee Laffitte from his injuries on April 18, 1999 and through the end of his life expectancy of 34.5 years at the time at trial, the amount of $150,000.00, or $75,000.00; and c. for all past unpaid cure in the full amount of $47,950.66, together with 50% of the future medical in the amount of $100,000.00, or $50,000.00. F. PREJUDGMENT INTEREST 1. Under maritime law, the awarding of pre-judgment interest is the rule rather than the exception, and, in practice, well-nigh automatic. Reeled Tubing, Inc. v. M/V CHAD G, 794 F.2d 1026, 1028 (5th Cir.1986). This rule applies equally to Jones Act claims brought under the Court's admiralty jurisdiction. *800 Williams v. Reading & Bates Drilling Co., 750 F.2d 487, 490 (5th Cir.1985). A trial court only has the discretion to deny pre-judgment interest where peculiar circumstances would make such an award inequitable. See id. In this Circuit, pre-judgment interest is usually awarded to the date of loss to ensure that the injured Plaintiff is compensated for the use of funds to which the Plaintiff was entitled, but which the Defendant had use of prior to Judgment. See Reeled Tubing, Inc., 794 F.2d at 1028. 2. The Court also has broad discretion in setting the rate of prejudgment interest. See id. at 1029. In setting the rate of pre-judgment interest as to past damages, the Court appropriately may look to reasonable guideposts, including the interest rates set forth in 28 U.S.C. § 1961 for judgments. See id. The Court finds the most equitable rate of pre-judgment interest would be 6.0%. Accordingly, the Court finds and awards on all damages accrued through the entry of Judgment pre-judgment interest at that rate. II. CONCLUSIONS OF LAW 1. The Court concludes that this is a case of admiralty and maritime jurisdiction. 2. At the time of his injury on April 18, 1999, the Court concludes that Lee Laffitte was a "seaman" as that term is legally defined under the Jones Act, and was employed by Defendant Maersk. 3. The Court concludes the injuries sustained by Plaintiff LEE LAFFITTE were proximately caused 50% by the negligence of Defendant MAERSK in failing to provide a safe place to work and the unseaworthiness of the M/V MAERSK CALIFORNIA, and 50% by Plaintiff himself. The Court finds that Defendant MAERSK is the legal owner of the M/V MAERSK CALIFORNIA. This negligence and unseaworthiness were each and both a legal and proximate cause of Plaintiff's injuries. 4. To the extent any Finding of Fact constitutes a Conclusion of Law, the Court hereby adopts it as such. To the extent any Conclusion of Law constitutes a Finding of Fact, the Court hereby adopts it as such. 5. For reasons set out in the Court's Findings of Fact and Conclusions of Law, and pursuant to Rule 58 of the Federal Rules of Civil Procedure, Judgment is hereby rendered in favor of Plaintiff on his stated claims against Defendant. Therefore, Plaintiff LEE LAFFITTE, shall have and recover from Defendant MAERSK LINE, LTD., the total amount of $447,950.66, plus taxable costs of court and pre-judgment interest as set forth herein, and post-judgment interest at the rate of 6.0% per annum, for which execution shall issue if not timely paid. IT IS SO ORDERED. FINAL JUDGMENT For the reasons set out in the Court's Findings of Fact and Conclusions of Law, entered herein of equal date, it is hereby ORDERED, ADJUDGED and DECREED that Plaintiff LEE NOVELL LAFFITTE shall have and recover of and from Defendant MAERSK LINE, LTD., the total amount of $447,950.66, together with taxable costs of court and pre-judgment interest as set forth in the Court's Findings of Fact, together with post-judgment interest at the rate of 6% per annum, for which let execution issue if not timely paid. THIS IS A FINAL JUDGMENT. All relief not herein expressly granted is denied.

77 Mass. App. Ct. 1 (2010) COMMONWEALTH v. RUPERT A. WEEKS. No. 08-P-1175. Appeals Court of Massachusetts, Plymouth. October 16, 2009. June 10, 2010. Present: KAFKER, KATZMANN, & RUBIN, JJ. *2 Kathleen M. O'Connell for the defendant. Kristin Freeman, Assistant District Attorney, for the Commonwealth. KATZMANN, J. The defendant, Rupert A. Weeks, was found guilty by a Superior Court jury of unlawful possession of a firearm without a licence, in violation of G. L. c. 269, § 10(a), and not guilty of unlawful possession of ammunition without a firearm identification card (G. L. c. 269, § 10[h]), and assault by means of a dangerous weapon (G. L. c. 265, § 15B[b]). He then waived his right to a jury trial on the charge of carrying a firearm without a license, subsequent offense. A Superior Court judge found the defendant guilty on that charge. The defendant now appeals from his conviction of possession of a firearm under G. L. c. 269, § 10(a), and possession of a firearm, subsequent offense, under G. L. c. 269, § 10(d). The defendant contends that the judge's admission of docket sheets to prove prior convictions during the subsequent offense trial violated his confrontation rights under the Sixth Amendment *3 to the United States Constitution. He also raises various trial issues. 1. Certified docket sheets and confrontation clause. During the jury-waived trial on the subsequent offense charge, the Commonwealth introduced two certified copies of conviction (the certified convictions) to prove that the defendant had been convicted of unlawful possession of a firearm on two prior occasions.[1] The defendant's trial counsel objected on the grounds that introduction of the certified convictions violated his Sixth Amendment confrontation rights as recognized in Crawford v. Washington, 541 U.S. 36 (2004) (Crawford). The judge overruled the objection, holding that the certified convictions complied with the requirements of G. L. c. 233, § 76, and were admissible under that statute.[2] We review the judge's decision to determine if an error occurred and whether that error was "harmless beyond a reasonable doubt." Commonwealth v. Rosario, 430 Mass. 505, 511 (1999), quoting from Commonwealth v. Miles, 420 Mass. 67, 73 (1995). See Commonwealth v. Vasquez, 456 Mass. 350, 356 (2010). In the aftermath of Crawford, this court articulated two reasons in support of our holding that docket sheets did not trigger the right of confrontation. See Commonwealth v. Crapps, 64 Mass. App. Ct. 915, 916 (2005). First, Commonwealth v. Verde, 444 *4 Mass. 279, 280 (2005), held that "a drug certificate is akin to a business record and the confrontation clause is not implicated by this type of evidence." We ruled that a docket sheet, like a drug certificate, is a business record and thus does not trigger the confrontation clause. Commonwealth v. Crapps, supra. Second, we determined that a docket sheet was not testimonial "because authors of prior conviction records are not witnesses against criminal defendants." Id. at 916 n.3, citing People v. Shreck, 107 P.3d 1048, 1060-1061 (Colo. Ct. App. 2004) (docket sheets are business records that are explicitly exempt from the Crawford standard). See Commonwealth v. Maloney, 447 Mass. 577, 591-592 (2006) (holding that G. L. c. 278, § 11A, allowing record of conviction to serve as prima facie evidence of prior conviction, did not violate confrontation clause). In June, 2009, the United States Supreme Court overturned Commonwealth v. Verde, supra, and held that the admission of certificates of drug analysis violated a criminal defendant's Sixth Amendment confrontation rights. See Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2542 (2009) (Melendez-Diaz). The Supreme Court stated that testimonial hearsay includes affidavits made under "circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Id. at 2531, quoting from Crawford, 541 U.S. at 52. The Court focused on the fact that "under Massachusetts law the sole purpose of the [drug certificate] affidavits was to provide `prima facie evidence of the composition, quality, and the net weight' of the analyzed substance." Id. at 2532, quoting from G. L. c. 111, § 13. The Commonwealth here argues that the certified convictions are not testimonial hearsay because they qualify as business records. In Melendez-Diaz, supra at 2538, the Supreme Court stated that "[d]ocuments kept in the regular course of business may ordinarily be admitted at trial despite their hearsay status.... But that is not the case if the regularly conducted business activity is the production of evidence for use at trial." The Court also clarified that "public records are generally admissible absent confrontation ... because — having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial — they are not testimonial." Id. at 2539-2540 *5 Therefore, in order to determine whether the certified convictions are testimonial, we must ascertain whether certified records of convictions are created for the "administration of an entity's affairs" or "for the purpose of establishing or proving some fact at trial." Certified records of convictions are created to establish the fact of adjudication, so as to promote accountability to the public regarding official proceedings and public knowledge of the outcomes of those proceedings. See Boston Herald, Inc. v. Sharpe, 432 Mass. 593, 606 (2000) (criminal court records open to public under the First Amendment as a "check" on the courts). See also Roe v. Attorney Gen., 434 Mass 418, 435 & n.26 (2001) ("[R]ecords of conviction are public records that are constitutionally required to be public"), citing Globe Newspaper Co. v. Fenton, 819 F. Supp. 89, 100-101 (D. Mass. 1993) (First Amendment right to records of convictions). They are used for a number of administrative purposes, including background checks and parole records. See G. L. c. 6, §§ 172C, 172D, 172E, 172F. Unlike drug certificates, docket sheets are not prepared for an upcoming case and are not testimonial since the authors are not witnesses against the criminal defendant.[3] See Commonwealth v. Martinez-Guzman, 76 Mass. App. Ct. 167, 171 n.3 (2010) ("Unlike the certificates at issue in Melendez-Diaz, which are created solely to prove an element of the prosecution's case, [Registry of Motor Vehicles] records are maintained independent of any prosecutorial purpose and are therefore admissible in evidence as ordinary business records under G. L. c. 233, § 78, as well as pursuant to G. L. c. 233, § 76"); Commonwealth v. McMullin, 76 Mass. App. Ct. 904, 904-905 (2010) (admission of court records and record of Registry of Motor Vehicles records did not violate the defendant's Sixth Amendment right of confrontation). See also Commonwealth v. Bowden, 447 Mass. 593, 599 (2006) (no difference between Registry of Motor Vehicles records and court records). Contrast Commonwealth v. Nardi, 452 Mass. 379, 393 (2008), quoting from Commonwealth v. Slavski, 245 Mass. 405, *6 417 (1923) (autopsy reports prepared by "public officers concerning causes and effects involving the exercise of judgment and discretion, expressions of opinion, and making conclusions" are inadmissible testimonial hearsay).[4] Furthermore, the docket sheets are not testimonial under the two-part inquiry set forth in Commonwealth v. Gonsalves, 445 Mass. 1, 3 (2005), cert. denied, 548 U.S. 926 (2006). First, the docket sheets are not "testimonial per se" because they are not "made in a formal or solemnized form (such as a deposition, affidavit, confession, or prior testimony) or in response to law enforcement interrogation." See Commonwealth v. Simon, 456 Mass. 280, 297 (2010), citing Commonwealth v. Gonsalves, supra at 13. Second, the docket sheets are not "testimonial in *7 fact" because, as we have discussed above, given the purposes for which they are created, and in light of the fact that they are not created for the purpose of any pending litigation, it would not reasonably be anticipated that they would be used against an accused. Compare Commonwealth v. Avila, 454 Mass. 744, 763 n.20 (2009) (hearsay statement in expert report made for purpose of upcoming litigation is testimonial in fact) with Commonwealth v. Simon, 456 Mass. 280, 299 (2010) (hearsay statement by victim to 911 dispatcher for purpose of "resolving the present emergency and not at conducting an investigation" not testimonial in fact), quoting Commonwealth v. Nesbitt, 452 Mass. 236, 248 (2008), and Commonwealth v. Linton, 456 Mass. 534, 550 (2010) (hearsay statement by victim to father "to explain to her father what had happened" not testimonial in fact). In short, certified docket sheets of conviction are distinguishable from drug certificates and do not constitutionally require cross-examination. Finally, the defendant points to Kirby v. United States, 174 U.S. 47 (1899), noted in Melendez-Diaz. There the United States Supreme Court discussed the confrontation clause question raised by the use of a record of prior conviction, as presented in Kirby: "In Kirby v. United States, 174 U.S. 47 (1899), ... the Court considered Kirby's conviction for receiving stolen property, the evidence for which consisted, in part, of the records of conviction of three individuals who were found guilty of stealing the relevant property. Id. at 53.... Though this evidence proved only that the property was stolen, and not that Kirby received it, the Court nevertheless ruled that admission of the records violated Kirby's rights under the Confrontation Clause. Id. at 55." Melendez-Diaz, 129 S. Ct. at 2534. Kirby is distinguishable and not controlling here. In that case, the government sought to use the record of convictions of third persons to prove that the property in the defendant's case was stolen. 174 U.S. at 53. In other words, in Kirby, the records of conviction were introduced not to demonstrate the fact of conviction, but the underlying evidentiary fact, that the goods were *8 stolen. It was a violation of Kirby's confrontation rights because he was not allowed to cross-examine any witnesses with respect to that evidentiary element. Id. at 55-56. In the present case, the Commonwealth seeks to use records of the defendant's prior convictions to prove that he had been convicted before, not to prove an underlying evidentiary fact. See Bisaccia v. Attorney Gen., 623 F.2d 307, 313-314 (3d Cir. 1980) (Seitz, C.J., concurring). Their admission did not violate the defendant's Sixth Amendment rights. 2. Trial issues. Background. On the night of January 29, 2005, the residents at 20 Tremont Street in Brockton hosted a birthday party. Six police officers conducted surveillance of the party on the basis of information they received in a telephone call that night.[5] Victoria Lassiter and three of her friends stood by the door at 20 Tremont Street to search people entering the party for alcohol or weapons. Between 11:00 P.M. and midnight, two men arrived at the party and approached the door. Lassiter found a bottle of liquor on one of the men and told him he could not enter the party with it. After the men stood in front of the house for ten to fifteen minutes, they discarded the bottle, and Lassiter further searched them. She felt something heavy in the pocket of one of the men, and she saw the grip of a gun. This man was wearing a green camouflage army windbreaker, and Lassiter later identified the man as the defendant. The two men stood outside the house, and other partygoers began to converge around them. The police officers conducting surveillance moved toward the crowd and saw a man on the ground being kicked. Lassiter testified that the man in the camouflage windbreaker pulled out a gun and fired it two or three times in the direction of a restaurant. The crowd dispersed chaotically in the immediate aftermath of the gunshots. The police officers converged on the scene outside 20 Tremont Street from three different angles. With their guns drawn, the officers ordered everyone to the ground. Six of the partygoers ran toward Detectives Hilliard and Carde, including the defendant. The defendant ducked between a parked car and a *9 snowbank. Detective Hilliard drew his weapon and yelled for the defendant to emerge with his hands up. He recognized the defendant immediately because they had had prior interactions.[6] Detective Hilliard frisked the defendant, and he searched the area where the defendant had ducked for a weapon. After Detective Hilliard did not find any contraband, he released the defendant. Detective Hilliard decided to search the area where the defendant had been hiding more thoroughly, and he saw the butt of a gun protruding from the snowbank. The gun found in the snowbank was a .22 caliber revolver with four live bullets and four empty shells in the cylinder. Detective Hilliard radioed the other officers to detain the defendant if they spotted him. Approximately one hour after the gunshots, police officers stopped a car outside 20 Tremont Street. Four men were in the car, including the defendant, who was in the back seat on the driver's side. The driver gave the police permission to search the car. Although the officers found no guns or other contraband, they found a camouflage jacket concealed in the trunk. On appeal, the defendant raises three trial issues, claiming error relating to gang affiliation evidence, and to the Commonwealth's opening statement and closing argument, and that the evidence was insufficient. a. Admission of defendant's gang affiliation. Prior to trial, the Commonwealth moved in limine to admit evidence of the defendant's affiliation with the North Side gang known as the "Annis Ave. Soldiers." The defendant's counsel opposed the motion because of the risk of unfair prejudice to his client. In the alternative, he proposed that the judge ask prospective jurors during the voir dire a question about whether gang membership would affect their impartiality and give a limiting instruction about gang membership. The prosecutor appeared to agree to this suggestion. The judge decided that the evidence was admissible, but barred the use of the word "gang" because of undue prejudice to the defendant. He ruled that using "young men" or "group of young men" from the North Side would minimize the risk of undue prejudice. The judge did not ask a question about gang membership to prospective jurors during the voir dire. Also, he *10 did not issue a limiting instruction to the jurors regarding gang membership. The defendant did not object in either instance. During the Commonwealth's opening statement, the prosecutor classified the dispute as between "[g]roups of young men that hang around together and basically have a street beef, going on for a long time. The North Siders, according to this information, were going to crash the birthday party at 20 Tremont Street." At trial, numerous police officers testified to the North Side/South Side dispute, and that they were familiar with the defendant as a North Sider. While the defendant did not object to testimony regarding a North Side/South Side dispute, he did object when one officer mentioned the defendant's affiliation with the "Annis Ave. Soldiers." The judge sustained the objection and told the counsel at sidebar that "[t]he question from the North Side or the South Side, the Annis Street area, is admissible. But, you know, saying the word gang, as in Hell's Angels, has the same connotation when you say a member of the Annis Street Soldiers. It conjures up the issue of a gang." He cautioned the Commonwealth to avoid word usage such as a "soldier." The defendant contends that the evidence of gang affiliation was irrelevant and unfairly prejudicial. While the Commonwealth presented the incident at 20 Tremont Street as a fight between rival groups, the defendant contends that it was simply a brawl among partygoers, and gang affiliation did not serve to establish the identification or the motive of the shooter. It is well-established that "gang affiliation evidence is admissible to show motive, and ... deference [is given] to trial judges' determinations of the risk of unfair prejudice arising from such evidence." Commonwealth v. John, 442 Mass. 329, 337 (2004). See Commonwealth v. Correa, 437 Mass. 197, 201 (2002); Commonwealth v. Swafford, 441 Mass. 329, 332 (2004); Commonwealth v. Smith, 450 Mass. 395, 399 (2008). The prosecutor is "entitled to present as full a picture as possible of the events surrounding the incident itself." Commonwealth v. Bradshaw, 385 Mass. 244, 269-270 (1982). In this case, the prosecutor presented evidence that the defendant was a known member of the North Side and that individuals from the North Side had a dispute with people from the South Side. The evidence showed *11 that the party and subsequent fight occurred in the south side of Brockton, and, at the least, the defendant participated in the fight, and partygoers were chanting "North Side" and "South Side." Given these facts, we agree with the Commonwealth that this evidence was relevant to prove the defendant's motive for having a gun and firing it. See Mass. G. Evid. § 401 (2010). When gang affiliation is relevant to the defendant's motive, "it is within the discretion of the judge to weigh the probative value of the evidence against its prejudicial effect." Commonwealth v. Correa, supra at 201. See Commonwealth v. Perez, 47 Mass. App. Ct. 605, 608 (1999) ("Although it was agreed that the participants in the trial would refer to the Latin Kings as an `organization' rather than as a `gang,' that effort to shield the jury, though probably foredoomed to futility, was likely the most that the judge could do to minimize prejudice. The judge could hardly minimize prejudice to the defendants in the jury selection process without asking the potential jurors [as she did] whether their impartiality would be impaired by evidence of a defendant's gang membership"). Accordingly, the judge did not abuse his discretion by permitting the Commonwealth to introduce evidence of the defendant's affiliation with the North Side group and its dispute with the South Side. See Commonwealth v. Dunn, 407 Mass. 798, 807 (1990). While the defendant contends otherwise, we further conclude that the judge's decision not to question prospective jurors about gang membership or issue a limiting instruction about the Commonwealth's evidence of the defendant's gang affiliation did not create a substantial risk of a miscarriage of justice. To be sure, questioning prospective jurors during voir dire about gang membership and issuing a limiting instruction regarding gang affiliation can serve to adequately minimize prejudice. See Commonwealth v. Maldonado, 429 Mass. 502, 505 (1999); Commonwealth v. Correa, 437 Mass. at 201; Commonwealth v. Swafford, 441 Mass. at 333; Commonwealth v. John, 442 Mass. at 338-339. But in this case, the Commonwealth presented strong evidence that tied the defendant to the gun, and an eyewitness — Victoria Lassiter — identified the defendant as the man who tried to enter the party with the gun. Also, she saw that same man fire the gun during the fight. Detective Hilliard spotted the *12 defendant ducking down between a parked car and a snowbank, and he found the gun concealed in the snowbank. According to testimony, the defendant was the only person in that vicinity in the aftermath of the gunshots. We are not "left with uncertainty that the defendant's guilt has been fairly adjudicated" as required to reverse under the substantial risk of a miscarriage of justice standard. Commonwealth v. Randolph, 438 Mass. 290, 294-295 (2002), quoting from Commonwealth v. Azar, 435 Mass. 675, 687 (2002). Finally, the jury acquitted the defendant on two of the three counts against him, which "suggests that they approached their duty dispassionately and were not inflamed." Commonwealth v. Bly, 444 Mass. 640, 655 (2005). b. The prosecutor's opening statement and closing argument. The defendant did not object at trial to the Commonwealth's opening statement or closing argument. Hence, we review the defendant's claims of error for a substantial risk of miscarriage of justice. See Commonwealth v. Randolph, supra at 297-298. We consider the claims of improper argument in the context of the entire argument, the instructions to the jury, and the evidence at trial. Commonwealth v. Beland, 436 Mass. 273, 289 (2002). First, regarding the Commonwealth's opening statement reference to the alerting call to the police,[7] the defendant has not shown that the prosecutor did not have a good faith belief that he would be able to prove that fact. Commonwealth v. Burke, 414 Mass. 252, 262 (1993). It could indeed be argued that evidence of the call was admissible, not for its truth, but rather to explain why the police happened to be stationed in the area. With respect to the references of hostility between the groups,[8] the judge had already indicated that such evidence would be admissible. Second, the prosecutor's closing argument, taken as a whole, *13 did not inappropriately vouch for the witness, Lassiter.[9] See Commonwealth v. Mayne, 38 Mass. App. Ct. 282, 286 (1995); Smith, Criminal Practice and Procedure § 35.29 (3d ed. 2007). The prosecutor did not inject his own personal beliefs about the credibility of Lassiter. He indeed asked the jury to consider whether they thought she was credible and whether they thought she was lying. In fact, the prosecutor told the jury that it was their job to determine her credibility, not his, and to apply their recollection of the evidence, not his. Third, the portion of the prosecutor's argument about it being difficult for Lassiter to testify was merely a comment on the evidence that was presented at trial,[10] noting it was difficult for Lassiter to come forward as a witness. Where, as here, there is evidence of a witness's fear of testifying, "a prosecutor may argue that it took `courage' or `character' for a witness to testify." Commonwealth v. Pina, 430 Mass. 266, 269 (1999), citing Commonwealth v. Jackson, 428 Mass. 455, 461 (1998). Fourth, the defendant claims that the prosecutor appealed to the jury's sympathy by asking them to disregard inconsistencies in the police officers' testimony. Actually, the prosecutor pointed out those inconsistencies, arguing that this was grounds to believe the officers.[11] "The credibility of witnesses is obviously a proper *14 subject of comment. Police witnesses are no exception." Commonwealth v. Murchison, 418 Mass. 58, 60 (1994). That such statements by the prosecutor were unlikely to elicit sympathy or otherwise inflame the jury is shown by the jury's acquittal on two of three charges. See Commonwealth v. Bly, 444 Mass. at 654-655. Fifth, although it is inappropriate to reference facts that are not supported by the admitted evidence, see Commonwealth v. Santiago, 425 Mass. 491, 499-500 (1997), in the instant case, such reference to the telephone call to the police in the closing did not go to the heart of any material issue of the trial.[12] See Commonwealth v. Marquetty, 416 Mass. 445, 451 (1993) (prejudicial errors related to collateral issues does not require reversal). The defendant's remaining claims of the prosecutor's references to facts not in evidence lack merit.[13] Finally, we note that in his preliminary and final jury instructions, the judge informed the jury that opening statements and closing arguments are not evidence, that it was the jury's memory of the evidence and not the memories of the attorneys that was controlling, and that it was the function of the jury to decide the case based solely on the evidence. These instructions minimized any possible prejudice. See Commonwealth v. Costa, 414 Mass. 618, 629 (1993). Viewed in the context of the trial as a whole, the prosecutor's opening statement and closing argument did not create a substantial risk of a miscarriage of justice. c. Denial of required finding of not guilty. The defendant argues that the judge erroneously denied his motion for a required finding of not guilty on the charge of possession of a firearm. The defendant maintains that there was insufficient evidence to support this conviction for two reasons. First, the defendant contends that there was insufficient evidence to show that he possessed the firearm. Second, he claims there was insufficient evidence that the gun was a firearm under G. L. c. 269, § 10(a). *15 Under the familiar standard, we review the evidence in the light most favorable to the Commonwealth, asking whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). First, the evidence produced at trial was sufficient to permit the jury to infer that the defendant possessed the firearm. The defendant was found wearing the same clothing that the witness described was worn by the shooter. The defendant hid between a snowbank and a car, where police found the gun, and Detective Hilliard testified that nobody else had been in that area. In addition, Lassiter testified that she saw the defendant with a gun and later identified him as the person with the gun. The jury were entitled to disregard her failure to identify the defendant in court based on the evidence that she was afraid of being involved. Even though the jury could have made other inferences, they could reasonably infer that the defendant possessed the gun and hid it in the snowbank. See Commonwealth v. White, 452 Mass. 133, 136 (2008); Commonwealth v. Duncan, 71 Mass. App. Ct. 150, 153-154 (2008). Second, the evidence was also sufficient to permit the jury to conclude that the gun constituted a working firearm under G. L. c. 140, § 121, and thus to sustain a conviction under G. L. c. 269, § 10(a). See Commonwealth v. Sampson, 383 Mass. 750, 753 (1981). "The burden on the Commonwealth in proving that the weapon is a firearm in the statutory sense is not a heavy one. It requires only that the Commonwealth present some competent evidence from which the jury reasonably can draw inferences that the weapon will fire." Commonwealth v. Nieves, 43 Mass. App. Ct. 1, 2 (1997). See Commonwealth v. Raedy, 24 Mass. App. Ct. 648, 654 (1987); Commonwealth v. Prevost, 44 Mass. App. Ct. 398, 403 (1998), citing Commonwealth v. Bartholomew, 326 Mass. 218, 220 (1950) (if only such slight repair, replacement, or adjustment required to make gun an effective weapon, gun will be deemed firearm within statutory definition). Here, there was evidence that the defendant was seen to have fired a gun, and Detective Hilliard testified that the gun was loaded when he found it, and that it contained four empty shells and four live rounds, all of which *16 was probative of operability. See Commonwealth v. Mendes, 75 Mass. App. Ct. 390, 397 (2009) (evidence of operability included three audible shots, three empty casings). Moreover, a ballistics expert testified that he test fired the weapon after inserting a center pin from his inventory.[14] The center pin was missing when he received the weapon. The expert testified that the center pin serves to rotate the cylinder of the gun, and that it is possible to manually turn the cylinder and thus fire the gun without a center pin. The testimony of the expert witness permitted the jury to conclude that the gun in question would fire, even without a center pin. Further, the arresting officers testified that there was a center pin in place when they found the weapon. Thus, a repair or adjustment was not even needed to fire the weapon. There was sufficient evidence presented for the jury to determine that the weapon was a firearm within the meaning of the statute. The defendant's motion for a required finding of not guilty was appropriately denied. Judgment affirmed. NOTES [1] At trial, the Commonwealth also presented five police officers and one employee of the Plymouth County house of correction to testify that the defendant had been incarcerated twice before for unlawful possession of a firearm. In addition to the two certified docket sheets of prior convictions, two District Court complaints were admitted over the defendant's objections. [2] General Laws c. 233, § 76, as amended by St. 1997, c. 164, § 282, states: "Copies of books, papers, documents and records in any department of the commonwealth or of any city or town, authenticated by the attestation of the officer who has charge of the same, shall be competent evidence in all cases equally with the originals thereof; provided, that, except in the case of books, papers, documents and records of the department of telecommunications and energy in matters relating to common carriers, and of the registry of motor vehicles, the genuineness of the signature of such officer shall be attested by the secretary of the commonwealth under its seal or by the clerk of such city or town, as the case may be." We note that subsequent amendment of the statute does not change our analysis. [3] That statutes, see, e.g., G. L. c. 233, § 76, and rules, see, e.g., Mass.R. Crim.P. 40(a)(1), 378 Mass. 917 (1979), contemplate that certified records of conviction might be admissible at trial does not signify that such records are prepared for a prosecutorial purpose, or that they are not prepared for other purposes independent of prosecution. [4] Courts in other jurisdictions have recently held that documentation such as certified records of convictions are not "testimonial." See, e.g., Wesson v. Clark, U.S. Dist. Ct. No. C 07-1437 SI(PR) (N.D. Cal. Nov. 23, 2009) ("abstract of judgment ... prepared on a form that objectively memorialized the unambiguous fact of conviction" and "notice that merely informed the sheriff that [defendant] had pled guilty to charged crimes ... were [not] prepared for the purpose of aiding in a later prosecution, [thus] they are nontestimonial"); Verdin v. Smelosky, U.S. Dist. Ct. No. CV 08-7885 R(JC) (C.D. Cal. Feb. 7, 2010) ("public records documenting convictions are non-testimonial and are beyond the prohibition of Crawford" and citing "United States v. Weiland, 420 F.3d 1062, 1076-77 [9th Cir. 2005] [records of conviction are public records, are not testimonial in nature, and do not fall within prohibition established in Crawford] ... [;] Van Pool v. Kenan, U.S. Dist. Ct. No. EDCV 07-1224-GWJTL [C.D. Cal. Jan. 22, 2010] [public records of convictions sustained by gang members offered to prove gang enhancement non-testimonial and not prohibited by Crawford]; Zuniga v. Felker, U.S. Dist. Ct. No. C 07-4319 PJH(PR) [N.D. Cal. Oct. 26, 2009] [admission of certified copies of court documents reflecting guilty pleas of gang members offered to show pattern of criminal activity for gang enhancement did not implicate Confrontation Clause because documents not made in anticipation of future litigation, but instead were records routinely made by government agency]"). See also Grey v. State, 299 S.W.3d 902, 910 (Tex. Ct. App. 2009) ("pen pack" documenting defendant's prior record nontestimonial because "objective circumstances indicate that the document was not prepared for prosecutorial use; appellant had already been convicted, and he was beginning a forty-five-year prison sentence. Instead, the social and criminal history appears on its face to have been prepared for the internal use of the department in determining appellant's proper classification and assignment"); United States v. Huete-Sandoval, 681 F. Supp. 2d 136, 139 (D.P.R. 2010) ("Defendant falls short of convincing the Court to extend the holding in [Melendez-Diaz] to necessarily classify as testimonial records kept by the U.S. Customs and Border Protection agency as a matter of course pursuant to their duty under law to maintain such records"). [5] An anonymous informant tipped off the police, but the jury only heard evidence that a telephone call had been placed to the police. [6] Detective Hilliard was familiar with the defendant because of his known affiliation with the North Side gang in Brockton. [7] "Detective Hilliard, I expect, is going to testify that the Brockton police received a call early this night of Saturday the 29th of January. There's going to be trouble on ... 20 Tremont Street. This is why the police are in the area that night." [8] "[Y]ou are going to hear those two groups [the North Siders and the South Siders] don't mix in the city of Brockton. Groups of young men that hang around together and basically have a street beef, going on for a long time. The North Siders, according to this information, were going to crash the birthday party at 20 Tremont Street." [9] "I'm going to ask you to consider the position Victoria Lassiter is in. Did she strike you as a good person? Did she strike you as a credible person? ... [T]his woman with no ax to grind, I suggest, not carrying the Commonwealth's water.... Did Victoria have any reason to overextend herself? Did she have any horse in this race, so to speak?" [10] Lassiter reluctantly provided the police officers with the details of her frisk of the man in the camouflage jacket. When they apprehended the defendant, the police called Lassiter to identify the defendant as the man she had frisked earlier. First, the police showed Lassiter someone other than the defendant, who she immediately identified as not the shooter. Lassiter sat in a police cruiser as officers brought a second individual, the defendant, toward her. At first, Lassiter did not identify the defendant as the man she had frisked. Then she said, "That's him. That's the kid with the gun." The defendant was arrested, brought to the Brockton police station, and booked. Lassiter testified on direct examination that she could not definitively identify the defendant as the person she saw with the gun. Although she identified the defendant as the shooter on the night of the incident and during the motion to suppress hearing, Lassiter unwillingly testified at trial against the defendant. She testified that she was afraid. The Commonwealth used her identification of the defendant at the motion to suppress hearing to impeach her testimony at trial. [11] "[W]hen everyone else was running out and running for their lives, they're running in. They are running in to try to stop this North-South act of violence that was taking place on Tremont Street. So I ask you to consider that before you judge a matter of seconds or a matter of feet too harshly. They're running in." [12] As in the opening, the prosecutor referred to the same fact not in evidence. [13] The defendant claims that the prosecutor impermissibly stated that people were chanting "North Side" and "South Side" outside of the party before the gunshots. Lassiter testified that they were. [14] In light of the fact that the ballistics expert testified at trial, this case raises no issue concerning the admission of the ballistics certificate. Compare Commonwealth v. Loadholt, 456 Mass. 411. 432-434 (2010).

Case: 19-20494 Document: 00515400668 Page: 1 Date Filed: 04/30/2020 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 19-20494 FILED April 30, 2020 Lyle W. Cayce SONIA GARCIA; PHILLIP GARCIA, Clerk Plaintiffs - Appellants v. WESLEY BLEVINS; CITY OF HOUSTON, Defendants - Appellees Appeal from the United States District Court for the Southern District of Texas Before SOUTHWICK, COSTA, and DUNCAN, Circuit Judges. STUART KYLE DUNCAN, Circuit Judge: Phillip Garcia, Jr. was shot and killed by Houston Police Officer Wesley Blevins in a restaurant parking lot where Blevins was working as a security guard. Garcia’s parents sued Blevins, claiming he violated Garcia’s constitutional rights. The district court granted summary judgment for Blevins because it determined that, while Blevins may have violated the Constitution, the alleged violation was not clearly established when the shooting occurred. We agree and AFFIRM. I. Garcia was with friends at Bombshells Restaurant and Bar in Houston, Texas, after going to a Houston Rockets game. Garcia and some friends got into  Case: 19-20494 Document: 00515400668 Page: 2 Date Filed: 04/30/2020 No. 19-20494 an argument with other Bombshells patrons, and eventually restaurant security—including Officer Blevins, who had a department-approved security job at the restaurant—asked them to leave. The groups left, but another scuffle flared up on the restaurant’s outdoor patio. Blevins and another security guard again told the group to leave, so the group headed to the parking lot. The fighting continued in the parking lot. Garcia, who had been challenged to a fight, ran to a friend’s parked car. Garcia’s opponents followed him. Garcia grabbed a handgun from the back seat of his friend’s car in order to “scare” the other men. The approaching group saw the handgun, and at least one of the men tried to rush Garcia. But Garcia fled again and headed back in the general direction of the restaurant. Meanwhile, Blevins and other guards, having just broken up the fighting, were told by a young woman that someone in the parking lot had a gun. Blevins requested police backup over his radio and went to investigate. Once outside, Blevins saw Garcia. Garcia was holding a t-shirt in his left hand, but Blevins could not see Garcia’s right hand. Blevins walked toward Garcia. He saw Garcia move his right hand from behind his back and realized that Garcia was holding a pistol. Blevins unholstered his own gun and ordered Garcia to drop his. Garcia did not. Instead, he kept walking, passing between two parked vehicles. He then re-emerged and continued walking toward the restaurant’s dumpster area. At least two people were standing near the dumpster. Garcia stepped behind one of them (apparently one of his friends) and tried to get the man to take the gun from him. The man refused, stepped away from Garcia, and put his hands up. There are conflicting stories about what exactly happened next, but it is undisputed that Garcia never disarmed as instructed. Blevins stated that as the man stepped away from Garcia, Garcia raised his gun toward Blevins. 2  Case: 19-20494 Document: 00515400668 Page: 3 Date Filed: 04/30/2020 No. 19-20494 Another eyewitness, Jesse Santana, stated that Garcia’s weapon was pointed down during the entire encounter. Yet another eyewitness, Cesar Gonzalez, recounted that Blevins “said something” to Garcia, and in response Garcia “put his hands up in the air.” A third eyewitness, Adam Flores, stated that Garcia did not raise his hands. Regardless of what happened, at this point Blevins “engaged” Garcia. He fired multiple shots, hitting Garcia in the chin, chest, and abdomen. Garcia died on the way to the hospital. His parents filed this action against the City of Houston and Blevins under 42 U.S.C. § 1983, alleging excessive force under the Fourth and Fourteenth Amendments, as well as municipal liability against the City. They also sought punitive damages. The district court referred the case to a magistrate judge, who recommended the district court grant summary judgment for Blevins and the City. As to Blevins, the magistrate judge concluded that there was a dispute of material fact over whether Blevins used excessive force against Garcia, but that any constitutional violation was not clearly established at the time of the shooting. The district court adopted the magistrate judge’s recommendation and granted summary judgment. The Garcias timely appealed. 1 They argue that genuine fact questions precluded summary judgment and that the law was clearly established. Alternatively, they urge us to revisit this circuit’s approach to qualified immunity and abandon the “clearly established” prong. II. “We review a grant of summary judgment de novo, viewing all evidence in the light most favorable to the nonmoving party and drawing all reasonable inferences in that party’s favor.” Ratliff v. Aransas Cty., Texas, 948 F.3d 281, 1On appeal, the Garcias press only the claim against Blevins. They have thus waived any challenge to the summary judgment for the City. See United States v. Scroggins, 599 F.3d 433, 446–47 (5th Cir. 2010). The summary judgment for the City is therefore affirmed. 3  Case: 19-20494 Document: 00515400668 Page: 4 Date Filed: 04/30/2020 No. 19-20494 287 (5th Cir. 2020) (quoting Gonzalez v. Huerta, 826 F.3d 854, 856 (5th Cir. 2016)). The movant must show “there is no genuine dispute as to any material fact and [he is] entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “However, a good-faith assertion of qualified immunity alters the usual summary judgment burden of proof, shifting it to the plaintiff to show that the defense is not available.” Ratliff, 948 F.3d at 287 (cleaned up) (quoting Orr v. Copeland, 844 F.3d 484, 490 (5th Cir. 2016)). Thus, to avoid summary judgment, the Garcias must point out a genuine dispute of material fact “as to whether [Blevins’] allegedly wrongful conduct violated clearly established law.” McCoy v. Alamu, 950 F.3d 226, 230 (5th Cir. 2020) (quoting Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010)). “We still draw all inferences in the plaintiff’s favor.” Taylor v. Stevens, 946 F.3d 211, 217 (5th Cir. 2019). III. “Qualified immunity protects government officials from civil liability in their individual capacity to the extent that their conduct does not violate clearly established statutory or constitutional rights.” Cass v. City of Abilene, 814 F.3d 721, 728 (5th Cir. 2016). It shields “all but the plainly incompetent or those who knowingly violate the law.” Thompson v. Mercer, 762 F.3d 433, 437 (5th Cir. 2014) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011)). We apply a two-step inquiry. See Winzer v. Kaufman Cty., 916 F.3d 464, 473 (5th Cir. 2019). First, we ask whether the facts alleged, viewed “in the light most favorable to the party asserting the injury,” establish that “the officer’s conduct violated a constitutional right.” Valderas v. City of Lubbock, 937 F.3d 384, 389 (5th Cir. 2019) (quoting Trammel v. Fruge, 868 F.3d 332, 339 (5th Cir. 2017)). Second, we ask “whether the right was clearly established.” Id. The Garcias bear the burden of showing that the right was clearly established. See Cass, 814 F.3d at 733. We can analyze the prongs in either order or resolve the case on a single prong. See Morrow v. Meachum, 917 F.3d 870, 874 (5th Cir. 2019). 4  Case: 19-20494 Document: 00515400668 Page: 5 Date Filed: 04/30/2020 No. 19-20494 Because it resolves the case, we begin and end with step two: was the alleged right clearly established at the time of the shooting? The district court determined it was not. We agree. To be clearly established, a right must be “sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Mullenix v. Luna, --- U.S. ---, 136 S. Ct. 305, 308 (2015) (per curiam). We cannot “define clearly established law at a high level of generality.” Ashcroft, 563 U.S. at 742. Rather, the question must be “frame[d] . . . with specificity and granularity.” Morrow, 917 F.3d at 874–75. We do not require plaintiffs to identify a case “directly on point,” but the case law must “place[ ] the statutory or constitutional question beyond debate.” Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011) (quoting Ashcroft, 563 U.S. at 741). Our inquiry “must be taken in light of the specific context of the case, not as a broad general proposition.” Mullenix, 136 S. Ct. at 308 (quoting Brosseau v. Haugen, 543 U.S. 194, 198–99 (2004)). In excessive-force cases, “police officers are entitled to qualified immunity unless existing precedent squarely governs the specific facts at issue.” Morrow, 917 F.3d at 876 (emphasis added) (quoting Kisela v. Hughes, --- U.S. ---, 138 S. Ct. 1148, 1153 (2018) (per curiam)). The Garcias fail to show Blevins violated clearly established law. It is not enough to argue Garcia had a clearly established right “to be free from deadly force where he was not attempting to flee and did not pose an immediate threat to the officers, nor anyone else.” That high level of generality cannot clearly establish the relevant law. Morrow, 917 F.3d at 874–85. The Garcias rely primarily on Reyes v. Bridgewater, 362 F. App’x 403 (5th Cir. 2010), to show the law was clearly established. Reyes is unpublished, however, and so cannot clearly establish the law. See McCoy, 950 F.3d at 233 n.6 (citing Cooper v. Brown, 844 F.3d 517, 525 n.8 (5th Cir. 2016)). And Reyes would fail to do so in any event. In that decision, we concluded that officers 5  Case: 19-20494 Document: 00515400668 Page: 6 Date Filed: 04/30/2020 No. 19-20494 violated clearly established law by shooting a man who held a kitchen knife, but who did not make a movement towards the officers or any other threatening gestures. Id. at 405, 407. We emphasized that a knife is a very different weapon than a gun, which is capable of causing fatal harm instantly at distance. Id. at 407. We concluded that no reasonable officer could have concluded that the suspect posed an immediate danger of harm, and thus deadly force was excessive. Id. Here, by contrast, Garcia was holding a gun, which he could at any time have turned on Blevins or any of the other individuals in the parking lot. Reyes thus provides no help to the Garcias’ case. While not cited by the Garcias, our recent en banc decision in Cole v. Carson is also distinguishable. In that case, while searching in the woods, officers suddenly confronted a teenager holding a gun to his head and shot him. 935 F.3d 444, 454–55 (5th Cir. 2019) (en banc). We explained that it violated clearly established law in 2010 for police to shoot someone who—though pointing a gun at his own head—made no threatening movements toward the officers, was facing away from the officers, was not warned by the officers even though there was opportunity to do so, and may have been unaware of the officers’ presence. Id. Here, by contrast, it is undisputed Garcia was aware of Blevins’ presence and that Blevins ordered Garcia to put down his weapon, but Garcia refused to do so. Those facts take this case beyond the contours of clearly established law at the time of the shooting. 2 2 Cole relied on Baker v. Putnal, 75 F.3d 190 (5th Cir. 1996), but Baker is also distinguishable. In Baker, gunfire erupted on a crowded beach and police officers were directed to a vehicle where the suspect was sitting. Id. Viewing the facts favorably to the plaintiffs, the suspect made no threatening move, was not holding a gun, and “may have barely had an opportunity to see [the officer] before [the officer] fired his gun.” Id. at 198. We held that “[c]haos on the beach and [the suspect’s] mere motion to turn and face [the officer] are not compelling reasons to find that [the officer’s] use of force was not excessive as a matter of law.” Id. This case is quite different: it is undisputed that Garcia knew of Blevins’ presence, that Blevins ordered Garcia to drop the gun, and that Garcia was holding the weapon in such a way that he could have turned it quickly on Blevins. 6  Case: 19-20494 Document: 00515400668 Page: 7 Date Filed: 04/30/2020 No. 19-20494 “[P]olice officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Graham v. Connor, 490 U.S. 386, 397 (1989). For that reason, we judge the reasonableness of the force used “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight,” id., and we avoid “second-guessing a police officer’s assessment, made on the scene, of the danger presented by a particular situation. Valderas, 937 F.3d at 389 (quoting Ryburn v. Huff, 565 U.S. 469, 477 (2012)). Blevins, having just twice broken up fighting in the restaurant in which Garcia was involved, was told someone in the parking lot had a gun. He saw Garcia walking, gun in hand, towards other people in the parking lot. Garcia ignored Blevins’ commands to drop the weapon, first ducking between parked vehicles and then trying to give the gun to someone else. Even under Plaintiffs’ version of events, it is undisputed that—although he may have put his hands up at some point—Garcia refused to drop the gun when ordered to do so, and he could have quickly turned it on Blevins. “[W]e have never required officers to wait until a defendant turns towards them, with weapon in hand, before applying deadly force to ensure their safety.” Salazar-Limon v. City of Houston, 826 F.3d 272, 279 n.6 (5th Cir. 2016), as revised (June 16, 2016). Here, we cannot say the law was “so clearly established that—in the blink of an eye . . .— every reasonable officer would know it immediately.” Morrow, 917 F.3d at 876. We therefore hold Blevins is entitled to qualified immunity because he did not violate clearly established law. IV. The Garcias also assert that, if we conclude the law was not clearly established, we should reconsider our approach to qualified immunity. As a panel of this court, however, we are bound by the precedential decisions of both 7  Case: 19-20494 Document: 00515400668 Page: 8 Date Filed: 04/30/2020 No. 19-20494 our court and the Supreme Court. See Vaughan v. Anderson Reg. Med. Ctr., 849 F.3d 588, 591 (5th Cir. 2017). Those cases set forth the qualified immunity analysis we apply today, and we are bound to follow them. * * * The judgment of the district court is AFFIRMED. 8 

Cite as 2016 Ark. 452 SUPREME COURT OF ARKANSAS. No. CR-16-374 Opinion Delivered December 15, 2016 MICHAEL LEE GEATCHES PRO SE MOTION REQUESTING APPELLANT FILE FROM DAVID DUNAGIN AND PRO SE MOTION REQUESTING V. FILE FROM DAVID MOORE AND DALE ARNOLD STATE OF ARKANSAS [CRAWFORD COUNTY CIRCUIT APPELLEE COURT, NO. 17CR-14-483] HONORABLE GARY R. COTTRELL, JUDGE RESPONSES ORDERED. HOWARD W. BRILL, Chief Justice On May 11, 2015, appellant Michael Lee Geatches pleaded guilty to second-degree sexual assault and was sentenced to 144 months in the Arkansas Department of Correction. On March 9, 2016, Geatches filed an untimely petition for postconviction relief under Arkansas Rule of Criminal Procedure 37.1 (2015). In a March 15, 2016 order, the circuit court denied Geatches’s postconviction petition on the ground that it was untimely, and Geatches lodged an appeal in this court. Now before us are his pro se motion requesting the file generated by his trial counsel, David Dunagin, and a second pro se motion requesting files generated by counsel, David Moore and Dale Arnold.  Cite as 2016 Ark. 452 Geatches filed a motion on May 12, 2016, requesting photocopies of “the entirety of his file that is in the possession of David Dunnagin [sic], att[orney] at law.” He states that “Petitioner has requested, by U.S. mail, on 3 occasions a copy of petitioner’s file. As of May 9, 2016[,] no response has been received.” The certificate of service attached to the motion indicates Dunagin was served with the motion by U.S. Mail. Geatches also filed a motion on May 20, 2016, in which he sought a copy of his file from counsel, David Moore and Dale Arnold, who Geatches alleged represented him in matters involving the Arkansas Department of Human Services.1 Geatches requests the “entirety of his file with both attorneys [sic] as they are directly related to petitioner’s criminal case and information is needed for said case.” The certificate of service indicates that both Moore and Arnold were served with the motion. Both of Geatches’s motions cited In re Arkansas Supreme Court Committee on Criminal Practice - Arkansas Rule of Appellate Procedure–Criminal 19, 2016 Ark. 145 (per curiam), Rule 1.16(d) of the Arkansas Rules of Professional Conduct, and Travis v. Supreme Court Committee on Professional Conduct, 2009 Ark. 188, 306 S.W.3d 3. Rule 19 of the Arkansas Rules of Appellate Procedure–Criminal states, (a) A convicted offender who seeks, at public expense, a copy of an appellate brief, the trial record, or a transcript must file a motion in the Supreme Court stating that he or she has requested the documents from his or her counsel and that counsel did not provide the documents. In addition, if the moving party seeks a photocopy (as opposed to a disk or other electronic medium), he or she must demonstrate some compelling need for the brief, record, or transcript. 1 Geatches contends that Moore represented him from March 18, 2014, until December 4, 2014, and that Arnold represented him from December 4, 2014, until October 2015. 2  Cite as 2016 Ark. 452 (b) A copy of the motion shall be served on counsel who prepared or filed the documents. Within 20 days of such service, counsel shall file a response. If the requested documents were not provided to the client, the response shall either commit to provide the requested documents or provide good cause why counsel will not provide the documents. Ark. R. App. P.–Crim. 19(a)–(b). Rule 19 became effective March 31, 2016, and was promulgated to address a recurrent issue faced by the appellate courts: convicted offenders request that the appellate courts provide at public expense a copy of the brief or appellate record that had been previously filed. See In re Ark. Sup. Ct. Comm. on Crim. Practice – Ark. R. of App. P. Crim.– 19, 2016 Ark. 145 (per curiam); see, e.g., Khabir v. State, 2014 Ark. 369, 439 S.W.3d 679 (per curiam); Mendiola v. State, 2013 Ark. 92 (per curiam). The scope of Rule 19 is limited. Based on the reporter’s notes, the intent of Rule 19 is to make clear that the party is to first look to his or her former attorney for those materials because counsel may already possess the requested documents. “Attorneys are the appropriate first stop for copies . . . .” Ark. R. App. P.–Crim. 19 rptrs. nn. (2016 Amendments). In many cases those documents have already been paid for either by the client or by the State if the party is indigent.2 2 Notably, indigency alone does not entitle a petitioner to photocopying at public expense. Moore v. State, 324 Ark. 453, 921 S.W.2d 606 (per curiam). When an appeal has been lodged in this court, the appeal transcript and other material filed on appeal remain permanently on file with the clerk of the supreme court. Id., 921 S.W.2d 606. Persons may review a transcript and other material in the clerk’s office and photocopy all or portions of it. Id., 921 S.W.2d 606. An incarcerated person desiring a photocopy of an item on file may write this court and request that a copy be mailed to the prison. Id., 921 S.W.2d 606. All persons, including prisoners, must bear the cost of photocopying. Id., 921 S.W.2d 606. 3  Cite as 2016 Ark. 452 Rule 19(b) does not make the requirement of counsel’s response to the motion contingent on counsel’s determination as to whether the motion has merit but instead makes counsel’s response mandatory. Within twenty days of service of the Rule 19 motion, counsel shall file a response. See Ark. R. App. P.–Crim. 19(b). “If the requested documents were not provided to the client, the response shall either commit to provide the requested documents or provide good cause why counsel will not provide the documents.” Id. If the attorney does not commit to provide the documents, the convicted offender may request, at public expense, a copy of an “appellate brief, the trial record, or a transcript[.]” For the convicted offender to obtain copies at public expense, he or she must demonstrate a compelling need for the copies. Geatches also referred to Rule 1.16(d), which is referenced in Rule 19: (c) An attorney has an obligation under Ark. R. Prof’l Conduct 1.16(d) to surrender documents such as an appellate brief, record or transcript to the client. This obligation requires the attorney to provide only what already exists in his or her possession. But if the attorney possesses paper copies that have been requested, the attorney must supply those paper copies. The attorney’s obligation is determined by Ark. R. Prof’l Conduct 1.16(d), and this rule is not intended to enlarge or diminish the obligation. Ark. R. App. P.–Crim. 19(c). Rule 1.16(d) of the Arkansas Rules of Professional Conduct sets out the lawyer’s responsibility regarding “surrendering of papers and property,” i.e., the client’s file, upon termination of representation. See Travis, 2009 Ark. 188, 306 S.W.3d 3 (sanctioning of an attorney who did not surrender documents to the former client).3 A request for documents 3 By per curiam opinion issued this same date, the court adopts Rule 1.19 of the Arkansas Rules of Professional Conduct, which concerns client files. See In re Amend to Rule 4  Cite as 2016 Ark. 452 pursuant to Rule 1.16(d) of the Arkansas Rules of Professional Conduct and counsel’s failure to surrender documents is pursued through an ethics complaint with the Supreme Court Committee on Professional Conduct. In contrast, a Rule 19 motion requesting a copy of a record or brief is a motion filed in this court and is not a disciplinary action against counsel. The distinctions between Rule 1.16 of the Arkansas Rules of Professional Conduct and Rule 19 of the Arkansas Rules of Appellate Procedure–Criminal are notable because, although they both address a lawyer’s responsibility to his or her client regarding certain documents and papers, they do so in differing ways. Allegations that an attorney has failed to turn over documents to a former client and thus has not complied with Rule 1.16(d) of the Rules of Professional Conduct are addressed to the Committee on Professional Conduct, not by a motion to this court. Significantly, the obligation of an attorney to turn over a client’s file exists notwithstanding any showing of need by the client. The plain language of Rule 1.16(d) places a duty on an attorney to surrender the papers and property to which the client is entitled upon termination of representation. 4 See Travis, 2009 Ark. 188, at 11, 306 S.W.3d at 8–9. In summary, Geatches alleges that he has requested documents from counsel and that counsel did not provide those documents. Both motions clearly referenced Rule 19 of the Arkansas Rules of Appellate Procedure–Criminal, which triggers counsel’s responsibility to 1.19–Ark. R. of Prof’l Conduct, 2016 Ark. 468 (per curiam). Rule 1.19 generally follows the “end product” approach as discussed in Travis, 2009 Ark. 188, 306 S.W.3d 3. 4 The duty to a former client is governed by Arkansas Rule of Professional Conduct 1.16(d). The corresponding duty to a current client is governed by the terms of the representation, including Arkansas Rule of Professional Conduct 1.4 (duty to keep client informed). 5  Cite as 2016 Ark. 452 respond notwithstanding counsel’s determination of whether he deems a response necessary. Certificates of service indicate that counsel were served with the motions. However, in violation of Rule 19(b), counsel have failed to file responses with this court. We direct attorney David Dunagin to file a response with this court within twenty days from the date of this opinion. We direct attorneys David Moore and Dale Arnold to file a response with this court within twenty days from the date of this opinion. Responses ordered. 6 

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-08-00579-CV The City of Frisco, Texas, Appellant v. The Commission on State Emergency Communications; Dorothy Marie Morgan and Paul Mallett in their Official Capacities; and North Central Texas Council of Governments, Appellees FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT NO. D-1-GN-04-003690, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING M E M O R A N D U M O P I N I O N This case involves the interpretation of Chapter 771 of the Texas Health and Safety Code, which addresses the State's administration of a 9-1-1 emergency communications system. See Tex. Health & Safety Code Ann. §§ 771.001-.110 (West 2003 & Supp. 2008). The City of Frisco ("Frisco") joined the State's system in 1989 and began providing 9-1-1 services to its residents in 1991. In 2004, Frisco filed a declaratory-judgment suit against the Commission on State Emergency Communications ("the Commission") and certain commission officers, seeking a declaration from the trial court interpreting the statute to say that: (1) Frisco could withdraw from the State's system; (2) once Frisco withdrew, the Commission could no longer collect an emergency service fee from Frisco's residents; and (3) upon Frisco's withdrawal, the Commission was required to distribute to Frisco a portion of the fees the Commission collected from wireless-telephone users. The parties filed cross-motions for summary judgment, and the trial court granted partial summary judgment for Frisco, declaring that Frisco could withdraw from the State's system, and partial summary judgment for the Commission, declaring that even after withdrawal, Frisco's residents would not be exempted from the State's emergency service fee, and Frisco would not be entitled to a portion of the wireless-telephone fee. Frisco appealed. Because we find no error in the trial court's determinations, we affirm the trial court's order. BACKGROUND In 1987, the Texas Legislature adopted Chapter 771 of the Texas Health and Safety Code ("the statute"), creating a statewide 9-1-1 emergency communications system and charging the Commission with the administration of the system. See Tex. Health & Safety Code Ann. §§ 771.001-.110. Prior to 1987, 9-1-1 systems were administered by local governments, combinations of local governments, and home-rule municipalities, which together provided services to about thirty-nine percent of the state's total population. (1) The statute sought to expand the 9-1-1 services to the rest of the state and implement the State's system through twenty-four existing regional planning commissions that were established under Chapter 391 of the Texas Local Government Code. See Tex. Loc. Gov't Code Ann. §§ 391.001-.015 (West 2006 & Supp. 2008); Tex. Health & Safety Code Ann. §§ 771.001(10), 771.055 (West 2003). Communities with preexisting 9-1-1 systems became "emergency communication districts" (ECDs) under the statute, and the legislature allowed the ECDs the option of not participating in the State's system. See Tex. Health & Safety Code Ann. §§ 771.001(3)(A), 771.071(d) (West 2003), § 771.0711(c) (West Supp. 2008). The legislature also authorized communities to become ECDs under Chapter 772 of the Texas Health and Safety Code, but they had to do so before January 1, 1988. (2) See Tex. Health & Safety Code Ann. §§ 771.001(3)(B), 772.104, 772.204, 772.304 (West 2003). To fund the statewide 9-1-1 system, the legislature initially adopted a two-tiered approach. First, the legislature authorized the Commission to impose an emergency service fee ("the land-line fee") on each local exchange access line in the state with the exception of the customers in an area served by an ECD that was not participating in the State's system. See id. § 771.071(a), (d). Second, the legislature authorized the Commission to impose an equalization surcharge on each customer in the state receiving intrastate long-distance service, including those customers in an area served by an ECD that was not participating in the State's system. (3) See id. § 771.072(a) (West 2003). In 1997, the legislature added a wireless emergency service fee ("the wireless fee"), authorizing the Commission to impose the fee on each wireless telecommunications connection in the state. See id. § 771.0711(a). The statute provides that after collecting the wireless fee each month, the Commission is then required to distribute a portion of the money to each ECD that does not participate in the State's system. See id. § 771.0711(c). Frisco is a home-rule municipality. (4) It joined the State's system in 1989 when it contracted with the North Central Texas Council of Governments ("North Central Council"), one of the regional planning commissions operating in the state, to begin providing 9-1-1 services to its residents. In 2003, Todd Renshaw, Frisco's chief of police and the person responsible for overseeing Frisco's 9-1-1 system, began considering the possibility of Frisco's withdrawal from the State's system so that it could provide its own 9-1-1 service to its residents. In an effort to determine whether the Commission would allow such a withdrawal, Renshaw met with the executive director of the Commission, Paul Mallett, on more than one occasion. Mallett indicated that there were no statutory provisions that would allow the Commission to permit a city to withdraw from the State's system. In November 2004, Frisco filed suit against three parties: the Commission, Mallett in his official capacity as executive director of the Commission, and Dorothy Marie Morgan in her official capacity as presiding officer of the Commission. The defendants later filed a petition to join the North Central Council as a party. Frisco and the Commission filed cross-motions for summary judgment, and the trial court granted partial summary judgment for Frisco, issuing a declaration that Frisco could withdraw from the State's system, and partial summary judgment for the Commission, declaring that once Frisco withdrew, the Commission could continue to collect the land-line fee from Frisco's residents and was not required to give Frisco a portion of the wireless fee. Frisco appeals from the summary-judgment order in two issues, asserting that the trial court erred in declaring that, even after Frisco withdrew from the State's system, (1) the Commission could continue to assess the land-line fee on Frisco's residents, and (2) the Commission need not give Frisco a portion of the wireless fee. (5) STANDARD OF REVIEW Summary judgments are reviewed de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When both parties move for summary judgment on the same issues and the trial court grants one and denies the other, the appellate court considers the summary-judgment evidence presented by both sides, determines all questions presented, and if the reviewing court determines that the trial court erred, renders the judgment the trial court should have rendered. Id. The issues raised in this appeal involve statutory construction, which is a question of law that we review de novo. State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006). In resolving an issue of statutory construction, we are required, first and foremost, to follow the plain language of the statute. Texas Health Ins. Risk Pool v. Southwest Serv. Life Ins. Co., 272 S.W.3d 797, 801 (Tex. App.--Austin 2008, no pet.). We read every word, phrase, and expression in a statute as if it were deliberately chosen, and we presume that words excluded from the statute are done so purposefully. Gables Realty Ltd. P'ship v. Travis Cent. Appraisal Dist., 81 S.W.3d 869, 873 (Tex. App.--Austin 2002, pet. denied). We must read the statute as a whole, rather than just isolated portions, giving meaning to the language that is consistent with other provisions in the statute. Dallas County Cmty. Coll. Dist. v. Bolton, 185 S.W.3d 868, 872-73 (Tex. 2005); Texas Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex. 2004). DISCUSSIONThe Land-Line Fee In its first issue, Frisco contends that the trial court erred in ruling that the Commission could continue to impose the land-line fee on Frisco's residents even after Frisco withdrew from the State's system. In support of its contention, Frisco makes three arguments, asserting that: (1) the Commission has no statutory authority to impose the land-line fee on non-participating home-rule municipalities; (2) the trial court's ruling creates an absurd result; and (3) the trial court's ruling results in double taxation. We will consider each argument in turn. However, before we do so, we must first address the crux of this issue: the statutory construction of the provisions of the statute referring to the land-line fee. A. Statutory Construction of Land-Line Fee Provisions The section of the health and safety code addressing the land-line fee states that "the commission may impose a [land-line] fee on each local exchange access line or equivalent local exchange access line, including lines of customers in an area served by an [ECD] participating in the applicable regional plan." Tex. Health & Safety Code Ann. § 771.071(a). The section also states that "[t]he fee does not apply to an [ECD] not participating in the applicable regional plan. A customer in an area served by an [ECD] not participating in the regional plan may not be charged a fee under this section." Id. § 771.071(d). The plain language of the exclusionary provision excepts only the residents of non-participating ECDs from paying the fee. There is no dispute that Frisco is not an ECD, and none of the language in the provision excepts home-rule municipalities or any other entities that are not ECDs. Thus, for us to conclude that Frisco is exempt from the fee would be for us to read additional language into the statute, which we will not do. See City of Rockwall v. Hughes, 246 S.W.3d 621, 628 (Tex. 2008) (quoting Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex. 1981)) ("[E]very word excluded from a statute must . . . be presumed to have been excluded for a purpose."). As noted in Hughes, there are two significant benefits to reading the statute's language literally and not reading additional language into the statute: (1) we do not risk crossing the line between judicial and legislative powers of government, and (2) we build upon the principle that ordinary citizens should be able to rely on the plain language of a statute to mean what it says. Id. Accordingly, based on the plain language of the statute, we conclude that the legislature intended to except only non-participating ECDs from the land-line fee, not non-participating home-rule municipalities, and that Frisco is therefore not excepted from the fee in the event that it withdraws from the State's system. Further supporting our interpretation is the legislature's reference to home-rule municipalities in several other provisions of the statute. See Tex. Health & Safety Code Ann. § 771.055(e) (referring to "home-rule municipalities that operate 9-1-1 systems independent of the state system"), § 771.062(c) (West 2003) (referring to "home-rule municipality that operates a 9-1-1 system independent of the state system"), § 771.0711(g) (referring to "a home-rule municipality .  .  . created under Chapter 772"). The legislature's other references to home-rule municipalities demonstrate that the legislature was aware of them and could have included them in the exception to the land-line fee if it wanted to do so, yet it did not. See Fireman's Fund County Mut. Ins. Co. v. Hidi, 13 S.W.3d 767, 769 (Tex. 2000) ("When the [l]egislature has employed a term in one section of a statute and excluded it in another, we presume that the [l]egislature had a reason for excluding it."). B. Commission's Authority to Impose Fee on Frisco Although Frisco states its first argument in two different ways--citing to several statutory provisions for the proposition that non-participating home-rule municipalities operate outside the statute and several others for the proposition that the statute provides no authority for the commission to impose the land-line fee on non-participating home-rule municipalities--the arguments can be combined into one: that the legislature had no intention of including non-participating home-rule municipalities in the state's 9-1-1 funding system and that the Commission therefore may not impose the land-line fee on non-participating home-rule municipalities. We begin by considering several sets of statutory provisions cited by Frisco for the proposition that non-participating home-rule municipalities are not included within the funding system in the first place. The first set of provisions includes the following: For each state fiscal biennium, the commission shall prepare a strategic plan for statewide 9-1-1 service for the following five state fiscal years using information from the strategic information contained in the regional plans and provided by [ECDs] and home-rule municipalities that operate 9-1-1 systems independent of the state system. Tex. Health & Safety Code Ann. § 771.055(e). An [ECD] or home-rule municipality that operates a 9-1-1 system independent of the state system may voluntarily submit strategic planning information to the commission for use in preparing the strategic plan for statewide 9-1-1 service. Id. § 771.062(c). On receipt of an invoice from a wireless service provider for reasonable expenses for network facilities, including equipment, installation, maintenance, and associated implementation costs, the commission or an emergency services district of a home-rule municipality or an [ECD] created under Chapter 772 shall reimburse the wireless service provider in accordance with state law for all expenses related to 9-1-1 service. Id. § 771.0711(g). None of the cited provisions supports Frisco's position. For example, the first and second provisions, sections 771.055(e) and 771.062(c), provide that the Commission must prepare a strategic plan for statewide 9-1-1 service using information provided by non-participating home-rule municipalities and that the non-participating home-rule municipalities may voluntarily submit the information. See Tex. Health & Safety Code Ann. §§ 771.055(e), 771.062(c). The legislature's acknowledgment of non-participating home-rule municipalities and the information they may provide for inclusion in the Commission's strategic plan is irrelevant to the issue of whether non-participating home-rule municipalities are included in the statewide 9-1-1 funding system. The legislature could reasonably include non-participating home-rule municipalities in the strategic planning and also require them to pay the land-line fee. Thus, the two provisions cited by Frisco do not affect our reading of the plain language of the land-line fee provision. Regarding the third provision, section 771.0711(g), it is also irrelevant to the issue of whether non-participating home-rule municipalities are included in the funding system. Section 771.0711(g) provides that home-rule municipalities must reimburse a wireless service provider for all expenses related to 9-1-1 service. See id. § 771.0711(g). That a home-rule municipality must reimburse a wireless service provider does not speak to whether that home-rule municipality must also pay a land-line fee. The legislature could conceivably require only one of the two payments, both of them, or neither. Thus, neither provision affects the other. (6) Like the first set of provisions cited by Frisco, the second set of provisions also does not support Frisco's proposition that non-participating home-rule municipalities are not included in the funding system of the statute. The second set of provisions states: Each regional planning commission shall develop a regional plan for the establishment and operation of 9-1-1 service throughout the region that the regional planning commission serves. Id. § 771.055(a) (emphasis added by Frisco). For each state fiscal biennium, the commission shall prepare a strategic plan for statewide 9-1-1 service for the following five state fiscal years using information from the strategic information contained in the regional plans and provided by [ECDs] and home-rule municipalities that operate 9-1-1 systems independent of the state system. Id. § 771.055(e). The first provision is irrelevant to the issue of the imposition of the land-line fee because the provision does not in any way refer to the fee or to non-participating entities within a regional planning commission region. Regarding the second provision, we have already determined that it does not affect our interpretation of the land-line fee provision. The third and final set of provisions cited by Frisco in support of its position that non-participating home-rule municipalities are not included within the funding system of the statute are drawn from Chapter 772 of the health and safety code. Chapter 772 addresses local, rather than state, administration of emergency communications. The first provision cited by Frisco states that "[the board of managers of an emergency communication district created under Chapter 288] may impose a 9-1-1 emergency service fee on service users in the district." Id. § 772.314(a) (West 2003) (emphasis added by Frisco). The second provision states that "[t]he [9-1-1 emergency service] fee must have uniform application and must be imposed in each participating jurisdiction." Id. § 772.314(b) (emphasis added by Frisco). However, the provisions do not apply to this case. Chapter 772 establishes local ECDs in counties with populations of more than 20,000 and allows certain ECDs to elect not to participate in the State's system. See id. §§ 772.301-.329 (West 2003 & Supp. 2008); Lubbock Emergency Communication Dist., 1999 Tex. App. LEXIS 7784, at *3. When the ECDs choose not to participate, they can impose user fees directly on their residents, and the state-imposed fees do not apply. As we have already stated, Frisco is not an ECD. Thus, the cited provisions do not apply to Frisco or otherwise affect our analysis of the land-line fee provisions in Chapter 771, which do apply to this case and which by their plain language do not except non-participating home-rule municipalities from paying the fee. For the proposition that the Commission has no statutory authority to impose the land-line fee on non-participating home-rule municipalities, Frisco cites another set of provisions. The provisions state: [T]he commission may impose a [land-line] fee on each local exchange access line or equivalent local exchange access line, including lines of customers in an area served by an [ECD] participating in the applicable regional plan. Tex. Health & Safety Code Ann. § 771.071(a) (emphasis added by Frisco). The commission may set the [land-line] fee in a different amount in each regional planning commission region based on the cost of providing 9-1-1 service to each region. Id. § 771.071(c) (emphasis added by Frisco). The [land-line] fee does not apply to an [ECD] not participating in the applicable regional plan. A customer in an area served by an [ECD] not participating in the regional plan may not be charged a fee under this section. Id. § 771.071(d). Frisco asserts that the three provisions limit the Commission's authority for assessing the land-line fee to those entities participating in the State's system. We disagree. The first provision merely states that the local exchange access lines on which the Commission may impose the fee include ECDs participating in the State's system, not that they are limited to them. The second provision allows the Commission to set the land-line fee at a different amount in each regional planning commission region but does not specifically address non-participating ECDs or home-rule municipalities within those regions. Regarding the third provision, we have already determined that the plain language excepts only non-participating ECDs, not non-participating home-rule municipalities, from paying the land-line fee, and we decline to read additional language into the provision. Thus, none of the provisions limits the Commission's authority for assessing the land-line fee to entities participating in the State's system. C. Whether Trial Court's Ruling Creates Absurd Result In its second argument, Frisco contends that the trial court created an absurd result when it held that a home-rule municipality can choose not to participate in the State's system but must nevertheless pay the land-line fee. In support of its position, Frisco cites Fleming Foods of Texas, Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex. 1999), for the proposition that courts should not construe a statute in a way that produces an absurd result. We disagree that the trial court's interpretation creates a result so absurd that the legislature could not have intended it. Allowing entities to withdraw from the State's 9-1-1 system while also refusing to exempt them from the 9-1-1 fees could merely reflect the legislature's intent to create a disincentive for entities to withdraw from the system. The statute represents an ambitious, statewide system that relies on funding received from throughout the state. If Frisco and other local entities were to withdraw from the State's system and take some of the State's funding with them, the system would be placed in jeopardy. Thus, it is reasonable to conclude that the legislature created the statutory scheme as it did with the intention of dissuading local entities from withdrawing from the system. Further, even if we were to assume that the legislature's silence as to non-participating home-rule municipalities in the exclusionary provision could have been an oversight or mistake, it is the legislature, not the courts, that must correct that mistake. See Brown v. De La Cruz, 156 S.W.3d 560, 566 (Tex. 2004) ("It is at least theoretically possible that legislators--like judges or anyone else--may make a mistake. That does not give us the power to legislate to fill any hiatus [the legislature] has left."). We therefore reject this argument. D. Whether Trial Court's Ruling Results in Double Taxation In its final argument regarding the land-line fee, Frisco asserts that the trial court's interpretation of the statute will result in double taxation for Frisco's residents. Specifically, Frisco points out that after withdrawing from the State's system and creating its own 9-1-1 system, it would need to impose its own land-line fee on its residents in order to fund its system. Thus, Frisco contends, its residents would have to pay both the State's land-line fee and Frisco's land-line fee in the event of Frisco's withdrawal, amounting to double taxation. However, in Frisco's hypothetical, it would be Frisco, not the statute, creating a new tax for 9-1-1 services. The statute imposes one land-line tax on all state residents with only certain specified exceptions. If Frisco stays within the State's system, its residents are taxed only once. It is only if Frisco withdraws from the system that it must impose a second tax on its residents. In that case, Frisco would choose to tax its residents for a service that the residents could otherwise obtain from the State. Because it would be Frisco, not the statute, imposing a second tax on Frisco's residents in the event of Frisco's withdrawal from the State's system, we reject Frisco's double-taxation argument. E. Conclusion Because the plain language of the statute does not except non-participating home-rule municipalities from paying the land-line fee, and because none of Frisco's arguments persuades us to make a different determination, we conclude that the trial court did not err in holding that the Commission could continue to assess the land-line fee on Frisco's residents after Frisco withdrew from the State's system. We therefore overrule Frisco's first issue. The Wireless Fee In Frisco's second issue, it challenges the trial court's ruling that even after Frisco withdrew from the State's system, it still would not be entitled to a portion of the wireless fee collected by the Commission. In support of its challenge, Frisco raises two arguments, contending that it should still receive a portion of the wireless fee because: (1) the Commission already distributes a portion of the fee to other non-participating entities, and (2) simple fairness, coupled with the Equal Protection Clause, demands it. We address each argument in turn. A. Commission's Distribution of Wireless Fee to Non-Participating Entities Frisco first asserts that the Commission's distribution of a portion of the fee to non-participating ECDs and non-participating home-rule cities compels the Commission to distribute a portion of the fee to Frisco after Frisco withdraws from the state system. In support of its assertion, Frisco points to a September 2007 wireless fee distribution report that lists the wireless fees distributed to "9-1-1 Emergency Communication Districts" and "Home Rule Cities." Although Frisco implies that the "Home Rule Cities" referenced in the report are not ECDs, the Commission contends the opposite. As evidence for its assertion, the Commission references an affidavit prepared by Mallett, the Commission's executive director, in which Mallett states that the "Home Rule Cities" referenced in the distribution report are in fact ECDs established under section 771.001(3)(A) of the Texas Health and Safety Code. (7) In his affidavit, Mallett further explains that the Commission and members of the 9-1-1 community "historically referred to § 771.001(3)(A) ECDs by the terms 'Home Rule Cities' or 'HRCs' because, of the 27 entities fitting the definition, all but one are indeed home-rule cities. The exception is the Dallas County Sheriff's Department, which is not a home-rule city but does fit the definition of an ECD under § 771.001(3)(A)." Frisco's argument requires us to construe the provisions of the statute addressing the wireless fee. The provisions state: To provide for automatic number identification and automatic location identification of wireless 9-1-1 calls, the commission shall impose on each wireless telecommunications connection a 9-1-1 emergency service fee. Tex. Health & Safety Code Ann. § 771.0711(a). Not later than the 15th day after the end of the month in which the money is collected, the commission shall distribute to each [ECD] that does not participate in the state system a portion of the money that bears the same proportion to the total amount collected that the population of the area served by the district bears to the population of the state. Id. § 771.0711(c). In reviewing the plain language of the statute, as is required by the rules of statutory construction, we note that the Commission's distribution of wireless fees to all non-participating ECDs is consistent with the plain language of section 771.0711(c), which states that the Commission must distribute a portion of the wireless fee "to each [ECD] that does not participate in the state system." See id. Further, as we previously noted, the fact that the legislature referenced home-rule municipalities in other provisions of the statute but not the provisions here lends additional support to our interpretation. See Fireman's Fund, 13 S.W.3d at 769. Because the plain language of the statute includes only non-participating ECDs in the wireless-fee distribution, and because there is no dispute that Frisco is not an ECD, we reject Frisco's argument. B. Equal Protection Clause In its second argument regarding the wireless fee, Frisco asserts that "simple fairness under the law, bolstered by the requirements of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution," demands that the Commission distribute a portion of its wireless fee to Frisco after Frisco's withdrawal from the State's system. Aside from a general reference to the equal-protection clause, Frisco does not cite to any legal authority in support of its argument, nor does it explain how the Commission's position allegedly violates the equal-protection clause. Instead, Frisco merely explains that the wireless fee must be assessed against all wireless connections because wireless customers are mobile, necessitating the possible provision of 9-1-1 services to them outside the area in which they pay their land-line fee, and then contends that Frisco should receive a portion of the wireless fee after it withdraws from the State's system because it will still need to provide 9-1-1 services to wireless customers traveling within its jurisdiction. Frisco further asserts that it would be the only entity in the state not to receive a portion of the wireless fee if it withdrew from the State's system and that its receipt of a portion of the wireless fee "makes sense" and is the "only fair result." Yet, regardless of how many ways Frisco might phrase its arguments, none of Frisco's contentions changes the plain language of the statute or causes us to be willing to read additional language into the statute. The statute provides that the Commission must distribute a portion of the wireless fees to non-participating ECDs. Frisco is not an ECD and is therefore not entitled to a portion of the fees. Whether the provision is fair or makes the most sense are questions for the legislature to consider, not the courts. See Hughes, 246 S.W.3d at 629 ("[O]ur standard for construing statutes is not to measure them for logic [but to] construe [them] to effectuate the intent of the [l]egislature, with the language of the statute as it was enacted to be our guide unless the context or an absurd result requires another construction.") Accordingly, we reject Frisco's argument and overrule its second issue. CONCLUSION Because we conclude that the trial court did not err in granting partial summary judgment for the Commission, we affirm the trial court's order. ___________________________________________ Diane M. Henson, Justice Before Chief Justice Jones, Justices Puryear and Henson Affirmed Filed: July 9, 2009 1. Because 9-1-1 services were localized before 1987, service gaps existed within the state. In a 1987 report created for the legislature, the Commission found several problems with the systems existing at that time. First, the Commission reported that existing 9-1-1 districts incurred unnecessary costs in re-routing calls from areas where 9-1-1 service was not available. Second, the lack of 9-1-1 service in the unserved areas and the time it took to re-route calls in those areas resulted in a critical loss of time in an emergency situation. Third, the cost of providing 9-1-1 service varied from jurisdiction to jurisdiction, with areas of high-population density enjoying lower average costs than sparsely populated areas. As a result, the Commission recommended a statewide 9-1-1 program to eliminate service-area gaps and allow for subsidization of the cost of 9-1-1 services in the less-populated areas. See Advisory Commission on State Emergency Communications, Report with Recommendations to the 70th Texas Legislature (Jan. 1987). 2. The City of Lubbock is one example of a community that became an ECD pursuant to Chapter 772. See Lubbock Emergency Communication Dist. v. Wireless Providers, No. 07-99-0045-CV, 1999 Tex. App. LEXIS 7784, at *3 (Tex. App.--Amarillo Oct. 19, 1999, pet. denied) (not designated for publication). 3. This fee, known as the "equalization surcharge," is specifically designed to supplement emergency service fees for regional planning commissions and ECDs that are in need of additional funding. 4. Home-rule municipalities derive their power from the Texas Constitution. See Tex. Const. art. XI, § 5; State v. Chacon, 273 S.W.3d 375, 378 (Tex. App.--San Antonio 2008, no pet.). They are essentially "mini-legislatures," with "full authority to do anything the legislature could theretofore have authorized them to do." Forwood v. City of Taylor, 214 S.W.2d 282, 286 (Tex. 1948); Chacon, 273 S.W.3d at 378. They possess "the full power of self government and look to the [l]egislature not for grants of power, but only for limitations on their power." In re Sanchez, 81 S.W.3d 794, 796 (Tex. 2002) (quoting Dallas Merchant's & Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489, 490-91 (Tex. 1993)). They have "all the powers of the state not inconsistent with the Constitution, the general laws, or the city's charter." City of Galveston v. State, 217 S.W.3d 466, 469 (Tex. 2007) (quoting Proctor v. Andrews, 972 S.W.2d 729, 733 (Tex. 1998)). 5. The Commission has not appealed the trial court's judgment that Frisco is entitled to withdraw from the State's system. 6. We also disagree with Frisco's contention that adopting the Commission's interpretation would render the three cited provisions meaningless. Our interpretation of the land-line fee provision--that the residents of non-participating home-rule municipalities must pay a land-line fee to the Commission--does not nullify the fact that non-participating home-rule municipalities may also provide information to the Commission for inclusion in the Commission's strategic plan or that they may also be required to reimburse wireless service providers. 7. Section 771.001(3)(A) defines an ECD as "a public agency or group of public agencies acting jointly that provided 9-1-1 service before September 1, 1987, or that had voted or contracted before that date to provide that service." Tex. Health & Safety Code Ann. § 771.001(3)(A) (West 2003).

Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal. ENTRY ORDER SUPREME COURT DOCKET NO. 2013-129 OCTOBER TERM, 2013 State of Vermont } APPEALED FROM: } } Superior Court, Chittenden Unit, v. } Criminal Division } } Jack Wallace } DOCKET NOS. 4485-11-12 Cncr & 517-11-12 Cncs Trial Judge: Michael S. Kupersmith In the above-entitled cause, the Clerk will enter: Defendant appeals from a decision of the superior court, criminal division, denying his motion to suppress in connection with a charge of driving under the influence of intoxicating liquor (DUI) and the civil suspension of his driver’s license. We affirm. On October 23, 2012, defendant was arrested for DUI, in violation of 23 V.S.A. § 1201(a)(1). Before his civil suspension hearing, he filed two motions to suppress for purposes of both the civil suspension and criminal proceedings. The motions challenged the legality of the stop and the admissibility of the breath test on grounds that the arresting officer did not allow him to contact a public defender within the thirty-minute period set by statute. The superior court held a hearing and then issued a decision denying the motions. On March 13, 2013, after the court issued its decision, defendant entered into a conditional plea on the criminal charge, reserving his right to appeal the denial of his motions to suppress. On the same day, he filed a joint notice of appeal from the civil suspension and the criminal conviction. On appeal, defendant first argues that the arresting officer refused to allow him to call a public defender before the expiration of the thirty-minute period established in 23 V.S.A. § 1202(c), thereby rendering his breath test involuntary and inadmissible. We find no merit to this argument. As provided in § 1202(c), a person who is asked to take an evidentiary breath test has a right to consult with an attorney; however, the person must decide whether to submit to the test “within a reasonable time and no later than 30 minutes from the time of the initial attempt to contact the attorney” and must make that decision “at the expiration of the 30 minutes regardless of whether a consultation took place.” Thus, as we stated in State v. Macie, 146 Vt. 28, 31 (1985), “the statutory thirty minutes is the maximum ‘reasonable time,’ not a minimum, in which to refuse the breath test.” Here, the arresting officer advised defendant that he had a right to contact either a private attorney or a public defender to consult on whether to take an evidentiary breath test. Defendant elected to call his private attorney, and at that point, 12:39 a.m., the officer informed him that the thirty-minute period had started. Defendant left a voicemail with his attorney at 12:41. At 12:46, the officer informed defendant that he could talk to a public defender for legal advice without having to use that attorney later. Defendant responded that he would give his attorney a couple more minutes to call him back. At 12:53, the officer informed defendant that he had fifteen minutes left to decide whether to take the breath test, at which point he would have to make a decision. The officer later informed defendant at 1:00 that he had nine minutes left, and at 1:08 that he had one minute left. With less than one minute left, defendant asked whether the choice was to call someone provided by the officer. The officer responded that he would have to decide whether to take the test. Defendant asked what the other options were, and the officer stated that there were no other options—it would be simply a yes or no. At 1:09, defendant elected to submit to the test. These facts demonstrate that defendant was given a reasonable amount of time to consult with an attorney, but ultimately was unable to do so because of his decision to wait to talk to his own attorney until it was too late to consult with a public defender. See State v. West, 151 Vt. 140, 144-45 (1988) (“The statutory mandate is fulfilled when reasonable efforts are made to allow an arrestee to consult privately with counsel.”). Defendant complains that he still had time left to talk to a public defender when he asked what his options were near the expiration of the thirty-minute period, but as the trial court found, the time remaining to defendant when he made his last-minute query was insufficient to contact and consult with an attorney before the maximum thirty-minute period expired. Moreover, his last-minute query did not plainly articulate a desire to speak to a public defender, and the officer did not explicitly deny such a request. Next, defendant argues that the court erred by not granting his motion to suppress based on the unlawfulness of the stop. The trial court ruled that the stop was justified based on the officer’s observations that defendant was speeding and that he drove his vehicle on the yellow centerline on several occasions. Defendant argues on appeal that: (1) because his vehicle never crossed the centerline, the officer could not have lawfully stopped him for violating 23 V.S.A. § 1031(a) (requiring vehicles to drive on right side of roadway); (2) his operation of the vehicle did not provide grounds for suspicion of drunk driving; and (3) he could not have been stopped for speeding because the officer testified that he did not stop defendant for speeding. “In reviewing a trial court’s decision on a motion to suppress, the court’s findings of fact must be upheld unless they are clearly erroneous.” State v. Davis, 2007 VT 71, ¶ 5, 182 Vt. 573 (mem.). This Court then determines the legal question of whether the facts as found by the trial court meet the proper standard to justify the stop. Id. A police officer may make an investigatory stop of a vehicle based on reasonable and articulable suspicion—more than unparticularized suspicion but considerably less than proof of wrongdoing by a preponderance of the evidence—of criminal activity or a traffic violation. Id. ¶ 7. “In determining the legality of a stop, courts do not attempt to divine the arresting officer’s actual subjective motivation for making the stop; rather, they consider from an objective standpoint whether, given all of the circumstances, the officer had a reasonable and articulable suspicion of wrongdoing.” State v. Lussier, 171 Vt. 19, 23-24 (2000). This standard allows officers to draw on their own experience and specialized training to determine whether criminal activity has occurred. Davis, 2007 VT 7, ¶ 7. We have held that intra-lane weaving may, but does not necessarily, create a reasonable suspicion to stop a vehicle; rather, reasonable suspicion is based on the totality of the circumstances, with the findings of fact remaining within the exclusive province of the trial court. Id. ¶ 8. 2  We conclude that the record supports the court’s determination that the stop was lawful. The officer testified that he observed defendant’s vehicle touch the yellow centerline on several occasions for the one or two miles that the officer followed the vehicle. After admitting into evidence and viewing the videotape of the stop, the court found that the officer had in fact made such observations. The officer further testified that touching the centerline is a sign of impairment based on his experience and training. We agree with the trial court that these facts justify the stop of defendant’s vehicle, even if defendant’s operation of the vehicle did not amount to a traffic violation. See State v. Pratt, 2007 VT 68, ¶ 9, 182 Vt. 165 (concluding that intra-lane weaving on several occasions over five miles was sufficient grounds for lawful stop). The intra-lane weaving of defendant’s vehicle may not have been dramatic, but the fact that his vehicle touched the centerline on several occasions provided reasonable suspicion of impaired operation. Affirmed. BY THE COURT: _______________________________________ John A. Dooley, Associate Justice _______________________________________ Marilyn S. Skoglund, Associate Justice _______________________________________ Beth Robinson, Associate Justice 3 

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 95-5930 PAUL WILLIAM NURSE, a/k/a Pablo, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 96-4384 VANESSA FREZER, Defendant-Appellant. Appeals from the United States District Court for the District of South Carolina, at Columbia. Joseph F. Anderson, Jr., District Judge. (CR-95-90) Submitted: September 2, 1997 Decided: October 24, 1997 Before MURNAGHAN, HAMILTON, and MICHAEL, Circuit Judges. _________________________________________________________________ Affirmed by unpublished per curiam opinion. _________________________________________________________________ COUNSEL Robert E. Bogan, NELSON, MULLINS, RILEY & SCARBOR- OUGH, L.L.P., Columbia, South Carolina; Susan Z. Hitt, Assistant Federal Public Defender, Columbia, South Carolina, for Appellants. J. Rene Josey, United States Attorney, Scarlett A. Wilson, Assistant United States Attorney, Columbia, South Carolina, for Appellee. _________________________________________________________________ Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). _________________________________________________________________ OPINION PER CURIAM: Paul Nurse appeals from his jury convictions and sentence for con- spiracy to possess with intent to distribute and to distribute cocaine and cocaine base, in violation of 21 U.S.C. § 841(a)(1) (1994), two counts of possession with intent to distribute cocaine base, in viola- tion of 21 U.S.C. § 841(a), and possession of a stolen firearm, in vio- lation of 18 U.S.C.A. § 922(g) (West Supp. 1997). Vanessa Frezer appeals from her jury convictions and sentence for possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a), and possession of a firearm by an alien, in violation of 18 U.S.C.A. § 922(g).1 In this consolidated appeal, Appellants' formal brief raises four issues. In addition, Nurse has filed a pro se supplemental brief raising numerous additional claims. Because we find that none of these claims has merit, we affirm Appellants' convictions and sen- tences. _________________________________________________________________ 1 Both Nurse and Frezer were also convicted of using or carrying a fire- arm in connection with a drug trafficking offense, in violation of 18 U.S.C.A. § 924(c) (West Supp. 1997). These convictions were vacated by the district court under Bailey v. United States, ___ U.S. ___, 64 U.S.L.W. 4039 (U.S. Dec. 6, 1995) (Nos. 94-7448/7442). 2 I. Since at least 1991, Dexter Pendergrass distributed cocaine in Chester, South Carolina, and West Virginia, using drugs purchased initially from sources in Charlotte, North Carolina, and later from New York City. After deciding to obtain a different source of drugs, Pendergrass was introduced to Rodney Wade and Nurse by their mutual friend, Robert Cunningham. At their first meeting, Wade and Nurse "fronted" Pendergrass an ounce of cocaine for which he was to pay $1300. Later that night, Pendergrass paid $600, with the remain- der to be paid the following day. On March 6, 1995, Pendergrass met with Nurse and a man Nurse identified as his brother. At that meeting Pendergrass paid the remain- ing $700, purchased an ounce of cocaine for $1100, and was fronted two ounces of cocaine base by Nurse. The following day, Pendergrass was arrested, and he agreed to cooperate with the police by contacting the source of his cocaine. Pendergrass made recorded calls to Wade's pager and to Cunning- ham. Pendergrass told Cunningham and Nurse that he had to throw away the cocaine that Nurse and Nurse's brother had fronted him on March 6. Pendergrass did this so that Nurse and Cunningham would not hear of his arrest and subsequent cooperation. Pendergrass testi- fied that, when he told Nurse that the cocaine was lost and he had no money, Nurse became very angry and threatened him with a gun. Nevertheless, Pendergrass, Wade, Nurse, and Cunningham negoti- ated a quarter kilogram deal. Pendergrass convinced Nurse that his friend, actually government agent Rodney Blacknall, was going to pay Nurse for the lost cocaine and buy an additional nine ounces of cocaine base. On March 13, Pendergrass, Cunningham, and Blacknall drove from Chester, South Carolina, to a McDonald's restaurant in Columbia, South Carolina, to meet with Nurse. Government agents conducted audio and visual surveillance of the McDonald's parking lot, and Blacknall wore a wire. After a brief conversation, Nurse and Cunningham drove away, leaving Pendergrass and Blacknall at McDonald's. Nurse drove Cun- ningham to a residence located near Williams Brice stadium. Nurse 3 told Cunningham to get into a different car, a blue Chevrolet, parked in the residence's driveway. Vanessa Frezer was seated in the front passenger seat of the vehicle. After directing Frezer to get into the back seat and Cunningham to sit in the front passenger seat, Nurse drove back to a parking lot adja- cent to McDonald's. Cunningham testified that Nurse instructed Frezer to "reach me that," whereupon Frezer pulled down the top part of the back seat and handed Nurse a bag containing cookies of cocaine base. Cunningham testified that he saw a nine millimeter gun in the secret compartment. Once Frezer handed Nurse the cookies, Nurse counted out eight of them and gave them to Cunningham. Nurse then drove the car into the McDonald's parking lot, and Cunningham entered McDonald's to tell Pendergrass and Blacknall that he had the drugs. Pendergrass and Blacknall went to Nurse's vehicle where Blacknall paid Nurse. Pendergrass, Cunningham, and Blacknall then returned to their vehicle, where Cunnigham produced the drugs. At that moment, the police moved in to make the arrests. The Chevrolet was subsequently searched and a firearm was found in a secret compartment. A bag of cocaine base was found on the ground under the car. The total weight of the cocaine base recovered on March 13 was 311.93 grams. Nurse, Frezer, Cunningham, and Wade were charged in a seven count superseding indictment.2 Nurse and Frezer's trial lasted for two weeks. The jury returned guilty verdicts on multiple counts as to each Defendant. Frezer was sentenced to 151 months imprisonment, fol- lowed by five years supervised release. Nurse was sentenced to 293 months imprisonment, followed by a term of five years supervised release. Both Nurse and Frezer challenge their convictions and sen- tences in this consolidated appeal. _________________________________________________________________ 2 Cunningham tendered his guilty plea prior to trial and testified for the Government. Wade entered his guilty plea after approximately one week of trial testimony. 4 II. During voir dire, the Government used six of its seven peremptory strikes against African Americans. Nurse and Frezer, who are both black, challenged two of the Government's strikes at trial alleging that they were based on race in violation of Batson v. Kentucky, 476 U.S. 79 (1986). We do not find that the trial court clearly erred in denying Appellants' Batson challenge. The process for examining an objection to peremptory challenges under Batson is as follows: (1) a defendant must make a prima facie showing that the prosecutor has exercised his peremptory challenges on the basis of race; (2) the burden then shifts to the prosecutor to articulate a race-neutral reason for excusing the juror in question; and (3) the trial court must determine whether the defendant has carried the burden of proving purposeful discrimination. Hernandez v. New York, 500 U.S. 352, 358-59 (1991). Here, the trial court found that a prima facie showing of discrimination was made, and the burden then shifted to the prosecutors to explain their basis for striking the jurors in question. The prosecutors stated that Gary Davis had been challenged because he was casually dressed and "disheveled." The prosecutors claimed that Angela Lynn was challenged because"she looked care- fully and longingly" at Nurse, would not make eye contact with the prosecution, and "seemed to identify" with another female venire per- son who had a shoplifting conviction. In evaluating the reasons offered by a prosecutor for exercising a peremptory challenge, the focus is on the facial validity of the expla- nation. Unless discriminatory intent is inherent in the prosecutor's explanation, the reason advanced will be deemed to be race-neutral. The explanation need not be "persuasive, or even plausible," so long as it is neutral. Purkett v. Elem, 514 U.S. 765, 768 (1995). Moreover, because the trial court is in the best position to observe the demeanor and judge the credibility of the attorney who exercised the challenge, great deference is accorded to a trial court's conclusion that the prof- fered reasons were not pretextual. Moore v. Keller Indus., 948 F.2d 199, 202 (5th Cir. 1991). 5 Here, the prosecutors articulated non-racial reasons, those being dress and eye contact. Dress and hairstyle have been recognized as legitimate reasons for using peremptory strikes against potential jurors. See United States v. Clemons, 941 F.2d 321, 325 (5th Cir. 1991). Further, lack of eye contact, body language, and apparent sym- pathy for the defendant are facially neutral explanations. See id.; United States v. Roberts, 913 F.2d 211, 214-15 (5th Cir. 1990). Because the prosecutors were able to provide race-neutral reasons for each strike, the defendants were required to show purposeful dis- crimination by the Government. See Purkett, 514 U.S. at 768 (holding that the burden of persuasion to demonstrate purposeful discrimina- tion ultimately rests with the opponent of the strike). The trial court conducted a "line-up" and viewed all the jurors in an attempt to com- pare Davis' appearance to the other jurors. The trial court also placed one prosecutor under oath to testify and be subjected to cross- examination regarding the look he noticed Lynn giving Nurse and his own inability to establish eye contact with Lynn. The trial court was in a position to evaluate the appearance of the jurors and assess the credibility of the prosecutors' explanations. The trial judge was spe- cific in its findings regarding both these aspects. Because the issues presented in a Batson challenge turn on evalua- tions of credibility, we review the district court's findings under a clearly erroneous standard. United States v. Grandison, 885 F.2d 143, 146 (4th Cir. 1989). Giving proper deference to the trial court, we conclude that Nurse and Frezer failed to show purposeful discrimina- tion, and the district court's findings, which are supported by the record, are not clearly erroneous. III. In his formal brief, Nurse challenges the denial of his motion for acquittal regarding his conviction for possession of a stolen firearm. In his pro se supplemental brief, he asserts that insufficient evidence supported his convictions for conspiracy and possession with intent to distribute cocaine base on March 13.3 We review a denial of a _________________________________________________________________ 3 Nurse was convicted of distributing cocaine base on March 6, 1995, and possessing with intent to distribute cocaine base on March 13, 1995. 6 motion for acquittal under a sufficiency of evidence standard. Fed. R. Crim. P. 29; see United States v. Brooks, 957 F.2d 1138, 1147 (4th Cir. 1992). In Glasser v. United States, the Supreme Court explained that a jury verdict "must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it." 315 U.S. 60, 80 (1942). Further, we assess the evidence in the light most favorable to the Government. United States v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996), cert. denied, #6D6D 6D# U.S. ___, 65 U.S.L.W. 3586 (U.S. Feb. 24, 1997) (No. 96-6868). First, Nurse contends that there was no evidence that he knew the firearm was in the Chevrolet. The record, however, belies this asser- tion. Cunningham testified that, shortly after their arrests, Nurse told him that the gun could not be traced to Nurse, because he bought it from someone who had stolen it from a gun store in Georgia. Cun- ningham also testified that Nurse told him he would lie, if questioned, and say that the gun was already in the car when he rented it. This evidence, if believed by the jury, was sufficient to show possession of the firearm by Nurse.4 Next, Nurse asserts that insufficient evidence supported his convic- tions for conspiracy and possession with intent to distribute. Viewed in the light most favorable to the Government, the evidence at trial clearly showed that Nurse agreed with Wade and Cunningham to dis- tribute cocaine base to Pendergrass. In addition, the evidence revealed that Nurse entered into an agreement with Frezer, Cunningham and Pendergrass to sell cocaine base to Blacknall on March 13. Blacknall testified that, on March 13, he paid Nurse for the cocaine base and received the drugs from Cunningham, who testified that he received _________________________________________________________________ 4 Because the evidence was sufficient to prove possession of the fire- arm beyond a reasonable doubt, it was clearly sufficient to support Nurse's sentence enhancement under U.S. Sentencing Guidelines Man- ual § 2D1.1 (1995). This adjustment applies when a weapon is "present, unless it is clearly improbable that the weapon was connected with the offense." USSG § 2D1.1(b)(1), comment. (n.3). Because, based on the record, the district court's determination that the firearm was present so as to justify an enhancement was not clearly erroneous, see United States v. Apple, 915 F.2d 899, 914 (4th Cir. 1990) (standard of review), we affirm the enhancement. 7 them from Nurse. The police recovered over 311 grams of cocaine base from the crime scene. We hold that, in construing this evidence in the light most favorable to the Government and drawing all reason- able inferences therefrom, a rational jury could easily have found Nurse guilty of conspiracy to possess with intent to distribute cocaine base and possession with intent to distribute cocaine base. IV. Nurse next contends that the district court erred by enhancing his sentence under U.S. Sentencing Guidelines Manual§ 3C1.1 (1995) for obstruction of justice. Cunningham testified at Nurse's sentencing hearing that Nurse attempted to bribe him by offering him $25,000 to testify that Nurse and Frezer had nothing to do with drug trafficking. Cunningham was subjected to cross-examination by Nurse's counsel. Nurse asserts that Cunningham's uncorroborated testimony was insuf- ficient to prove obstruction of justice. The Government must prove the factual basis for an enhancement by a preponderance of the evidence. Furthermore, when, as here, the issue is primarily a factual determination, we reverse only if the deci- sion was clearly erroneous. See United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989). Finally, the weight given an accomplice's testimony is a decision strictly within the province of the district court. See United States v. Thomas, 93 F.3d 479, 489 (8th Cir. 1996) (finding of perjury where defendant's testimony contradicted accom- plice's testimony not clearly erroneous). Given Cunningham's testi- mony and the fact that Nurse offered no contradictory evidence,5 we find that the Government met its burden of proof. See United States v. Riley, 991 F.2d 120, 125-26 (4th Cir. 1993). _________________________________________________________________ 5 Contrary to Nurse's assertion, we find that the district court did not improperly shift the burden of proof to Nurse. When the district court noted that Nurse did not deny the obstructionist conduct, it was simply commenting on the evidence before it. As discussed above, Cunning- ham's testimony, if believed by the district court, was sufficient to sup- port the enhancement, and Nurse failed to contradict that testimony. 8 V. Frezer contends that insufficient evidence was introduced to sup- port her convictions for possession with intent to distribute cocaine base and possession of a firearm by an alien. She asserts that the pros- ecution failed to present sufficient evidence to show possession of either the drugs or the firearm. Frezer's argument concerning the drugs is easily dispensed with. The evidence showed that Frezer was waiting for Nurse's arrival. Once Nurse, Cunningham, and Frezer were in the car, Nurse asked Frezer to "reach me that." Frezer, with- out any further clarification, knew to open the backseat secret com- partment which contained the cocaine base and the gun. Frezer than took the cocaine base from the compartment and handed it to Nurse to complete the transaction. From this evidence, a reasonable jury could find that Frezer actually possessed cocaine base and handed it to Nurse with the expectation and understanding that he was going to sell it. Regarding the firearm, mere presence as a passenger in a car from which the police recover contraband or weapons does not establish possession. See United States v. Blue, 957 F.2d 106, 108 (4th Cir. 1992). Testimony that the defendant removed something from the spot where the police later found the weapon can support a finding of possession, however. See United States v. Flenoid, 718 F.2d 867, 868 (8th Cir. 1983). In this instance, Frezer had dominion and control over the firearm, because she had control over and used the secret compartment and, in fact, she was alone in the car for a substantial period of time. See United States v. Bell, 954 F.2d 232, 235-36 (4th Cir. 1992), overruled on other grounds, United States v. Burgos, 94 F.3d 849 (4th Cir. 1996); United States v. Eldridge, 984 F.2d 943, 946 (8th Cir. 1993). In addition, Cunningham testified that once the secret compartment was opened, the firearm was in plain view. Accordingly, there was sufficient evidence to support Frezer's conviction. VI. Frezer also argues that she was entitled to a four-level reduction in her offense level for her minimal role in the offense under USSG § 3B1.2(a). At sentencing, the district court granted Frezer a two-level 9 reduction in her offense level for her minor role in the offense under USSG § 3B1.2(b), but denied her a further downward adjustment. Section 3B1.2 enables a court to reduce a defendant's offense level by four levels if he or she was a minimal participant in criminal activ- ity, by two levels if he or she was a minor participant in criminal activity, or by three levels if his or her participation was less than minor but more than minimal. A defendant must show by a prepon- derance of the evidence that he or she is entitled to the downward adjustment he or she seeks. United States v. Gordon, 895 F.2d 932, 935 (4th Cir. 1990). On appeal, we will not disturb a district court's finding as to a defendant's role in the offense unless that finding is clearly erroneous. Daughtrey, 874 F.2d at 218. Frezer had dominion and control over approximately 311.93 grams of cocaine base, worth up to $9,000. She was directly involved in see- ing that these drugs reached their intended buyer. In short, Frezer failed to show by a preponderance of the evidence that she was enti- tled to a downward adjustment of her sentence for minimal participa- tion. See United States v. Garcia, 920 F.2d 153, 155-56 (2d Cir. 1990) (departure denied where defendant was entrusted with and delivered large amount of cocaine). VII. Nurse contends that the jury was improperly instructed after Wade pled guilty. According to Nurse, the district court informed the jury that Wade had been "removed" from the case, that the jury should not speculate on the reason, and that the jury should judge the guilt or innocence of the remaining defendants solely on the evidence.6 Nurse asserts that the jury should have been informed that Wade pled guilty. First, it is hard to imagine how disclosure of Wade's guilty plea could have aided Nurse. The testimony at trial showed that Wade and Nurse were together involved in drug dealing. Therefore, Wade's plea would tend to implicate Nurse. Next, any negative inference from the _________________________________________________________________ 6 The joint appendix does not include the instructions. Therefore, we have assumed, for purposes of argument, that Nurse correctly describes the instructions. 10 court's explanation regarding Wade was foreclosed by the court's clear instructions to the jurors that they should not speculate or con- sider the reason for Wade's removal. Therefore, we find no prejudice from the court's instructions. See United States v. Sockwell, 699 F.2d 213, 216 (5th Cir. 1983). VIII. Finally, Nurse asserts that the Government participated in a con- spiracy designed to convince drug dealers to falsely testify at his trial. He seeks access to transcripts of the grand jury proceeding in order to support his contentions. Nurse's allegations are broad and conclu- sory. He presents no evidence of prosecutorial misconduct nor does he indicate specific facts that are allegedly supported by the tran- script. Finally, Cunningham and Pendergrass' backgrounds were explored at trial, and the jury was well aware that they were both tes- tifying under agreement with the Government. Because Nurse has not shown a specific need for the transcripts, we will not permit a "fishing expedition." Nurse's motion for production of transcripts is denied. See Fed. R. Crim. P. 6(e); see also Douglas Oil Co. v. Petrol Stops NW, 441 U.S. 211, 223 (1979) (disclosure appropriate only where need for transcripts outweighs public interest in secrecy). IX. Accordingly, for the reasons stated, we affirm Appellants' convic- tions and sentences. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 11 

Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 8-15-2008 USA v. Fleming Precedential or Non-Precedential: Non-Precedential Docket No. 06-3640 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "USA v. Fleming" (2008). 2008 Decisions. Paper 649. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/649 This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.  NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ Nos. 06-3640, 07-2369, and 07-2822 ___________ UNITED STATES OF AMERICA v. DANIEL FLEMING, Appellant No. 06-3640 __________ UNITED STATES OF AMERICA v. RUSSELL ROBINSON, Appellant No. 07-2369 __________ UNITED STATES OF AMERICA v. CRAIG M. HENDRICKS, Appellant No. 07-2822 ________________________ On Appeal from the District Court of the Virgin Islands D.C. Criminal Nos. 04-cr-0005-4 04-cr-0005-2 04-cr-0005-1 District Judge: Honorable James T. Giles ________________________ Submitted Under Third Circuit L.A.R. 34.1(a) May 6, 2008 Before: RENDELL, FUENTES, and CHAGARES, Circuit Judges. (Filed: August 15, 2008) 1  ____________ OPINION OF THE COURT ____________ FUENTES, Circuit Judge. In April 2003, a grand jury handed down a twelve count indictment against Craig Hendricks, Russell Robinson, and Daniel Fleming, along with other co-defendants who are not involved in this appeal. Hendricks was alleged to be the leader of a large narcotics-trafficking organization in which the other defendants participated. All three defendants were convicted and now, separately, appeal their convictions. As a result of various motions, these appeals were consolidated for our review. For the reasons set forth below, we will affirm the judgments of conviction. I. One of the government’s planned witnesses, Hector Rivera, who was originally involved in the narcotics conspiracy with the co-defendants and became a confidential informant (“CI”), provided the government with taped conversations, videos of drug transactions, and information leading to a wiretap of the co-defendants. Prior to trial, Rivera was murdered by an unknown person. The District Court then denied the government’s motion in limine seeking to admit conversations involving Rivera, based on its reading of Crawford v. Washington, 541 U.S. 36 (2004). The government appealed that order and we reversed. See United States v. Hendricks, 395 F.3d 173 (3d Cir. 2005) (“Hendricks I”). The case proceeded to trial and the jury convicted Hendricks, Robinson, 2 and Fleming of three conspiracy counts: to import drugs, to distribute drugs, and to launder money. In addition, Hendricks and Fleming were convicted of narcotics possession and distribution, and Hendricks was convicted of three additional counts of narcotics possession and distribution. On appeal, each defendant raises separate issues. Hendricks argues that there was insufficient evidence to support his money laundering conviction, that he was denied access to counsel because he was held in Puerto Rico during the trial, and that the District Court erred by admitting Rivera’s tape recorded and video taped statements, and by admitting all of the statements relating to Rivera without performing an individualized review of the reliability of each statement. Fleming argues that the transfer of the trial from St. Thomas to St. Croix violated his due process rights and that there was insufficient evidence to support his possession and distribution conspiracy conviction, his drug trafficking conspiracy conviction, and his money laundering conspiracy conviction. Robinson, who is proceeding pro se on appeal, claims that the District Court did not have jurisdiction over the case because of the prosecutors’ alleged failure to file their oaths of office with the clerk of the Virgin Islands District Court, that there was insufficient evidence to convict him on any count, that the District Court should have acquitted him because of inconsistent verdict form responses, that he was denied the right to represent himself during trial, and that there were “[s]tructural and other trial errors.” (Robinson Br. at 19.) II. 3  In this opinion, we will focus on the Confrontation Clause issue that Hendricks raises in his briefs. We will review the question of whether the admission of evidence at trial was error under the Confrontation Clause de novo. Hendricks I, 395 F.3d at 176. We previously addressed the Confrontation Clause issue in this case on interlocutory appeal brought by the government in Hendricks I. In that opinion, we interpreted, for the first time, the meaning of testimonial evidence as discussed in Crawford. On appeal, Hendricks argues that our decision in Hendricks I has been cast into doubt after the Supreme Court’s decision in Davis v. Washington, 547 U.S. 813 (2006). He argues that two types of evidence were produced at trial in violation of his Confrontation Clause rights: video tapes made by CI Rivera and testimony by the case agent regarding statements made by Rivera. His arguments fail, for the reasons set forth below. First, with respect to the video evidence, the government introduced a videotape at trial, made by CI Rivera on March 2, 2003. On that day, Rivera was given $23,000 from the government to purchase drugs from Hendricks. The portions of the videotape shown at trial showed Hendricks counting money inside his house and Rivera meeting with Fleming. Rivera returned from Hendricks’s house with three kilograms of cocaine and, later, most of the money was found in Hendricks’s home. Hendricks argues that Davis extended the scope of Crawford to cover “tangible items,” and thus the introduction of the video was error. (Hendricks Br. at 60 (emphasis in brief).) Hendricks’s claim fails. Only testimonial hearsay is subject to the Confrontation Clause. Davis, 547 U.S. at 821. In Crawford, the Supreme Court declined to provide an 4 exhaustive definition of what makes a statement testimonial. Id. at 51-52. However, the court provided examples of testimonial statements, including police interrogations. Id. at 52. In Davis, the Supreme Court explained that even police interrogations are not testimonial “when made . . . under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.” Id. at 822. Thus, in essence, Davis worked to narrow the definition of testimonial evidence, not broaden it. Hendricks misses the mark by arguing that the only relevant inquiry is whether the evidence at issue was made for the purpose of prosecution. As noted above, Crawford declined to provide a comprehensive definition of testimonial. However, it provided guidance that makes clear that the video in this case is not testimonial. The Crawford Court explained that the Confrontation Clause applies to: witnesses against the accused – in other words, those who bear testimony. Testimony, in turn, is typically a solemn declaration or affirmation made for the purpose of establishing or proving some fact. An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. Crawford, 541 U.S. at 51 (quotations and citations omitted). The Court went on to determine that “[s]tatements taken by police officers in the course of interrogations are . . . testimonial.” The visual aspect of the video is not testimonial as there is no “statement” that could be construed to be testimonial. The audio aspect1 is similarly not testimonial as 1 The government claims that it is “highly doubtful [that] the jury could make out any intelligible conversation from the tape.” (Gov’t Br. at 40.) 5 the statements made are not “solemn declaration[s]” but “casual remark[s]” made to acquaintances in furtherance of the drug transaction. Further, the audio, to the extent it was audible, was admissible, as to comments by Hendricks or Fleming, as statements of a party opponent pursuant to Federal Rule of Evidence 801(d)(2), and, as to comments by Rivera, in order to place Hendricks’s and Fleming’s statements in context. Hendricks I, 395 F.3d 183. Secondly, Hendricks argues that the District Court erred, on remand from this court, by making a blanket decision to admit statements related to CI Rivera, rather than analyzing the statements on an individual basis. This contention lacks merit – the District Court performed a pretrial hearing to determine that the evidence in question was authentic and otherwise admissible, as it was directed to do in Hendricks I. Hendricks specifically disputes the District Court’s decision to admit testimony by government witness Christopher Schoenbohm, who testified about a drug transaction involving Hendricks, which Schoenbohm sent Rivera to handle. Hendricks complains that Schoenbohm, who was not present at the transaction, could have only known about the conversations because they had been relayed to him by Rivera. However, as these conversations took place before Rivera became a CI, they fell under the hearsay exception for coconspirator statements in Federal Rule of Evidence 801(d)(2)(E). Finally, Hendricks complains that Agent Tokarz was allowed to testify as to conversations that he had with Rivera, and about events that he could have only known about through conversations with Rivera. Because he was not asked to testify as to any 6 statements made during out of court conversations, Agent Tokarz’s testimony regarding the existence of, but not the content of, conversations does not present a hearsay problem. Fed. R. Evid. 801(a), (c). In addition, the fact that Agent Tokarz instructed CI Rivera to make taped conversations with Hendricks and on what to say does not present a hearsay problem. Fed. R. Evid. 801(c). The tapes themselves were admissible for the reasons discussed in Hendricks I. We note briefly that, with respect to the sufficiency of the evidence claims, the burden on a defendant to obtain relief is very high. United States v. Leahy, 445 F.3d 634, 657 (3d Cir. 2006) (quoting United States v. Dent, 149 F.3d 180, 187 (3d Cir.1998)). In order to prevail on a insufficiency of the evidence claim, a defendant must show, viewing the evidence in the light most favorable to the government, that no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See id. The defendants in this case have failed to meet that heavy burden. Subsequent to the original briefing in this case, Robinson submitted a 28(j) letter, asking us to consider the impact of Cuellar v. United States, 128 S.Ct. 1994 (2008) on his money laundering conspiracy conviction. In Cuellar, the Supreme Court held that the government must show that a defendant charged with transporting the proceeds of unlawful activity across a border in order to “conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity” in violation of 18 U.S.C. § 1956(a)(2)(B)(i), knew that the transportation was designed to conceal or disguise one of the listed attributes of the funds. We asked the government to 7 respond to Robinson’s letter. The government did so, noting that Robinson was convicted of a money laundering conspiracy count, not a substantive money laundering count. Accordingly, the government needed only to show that Robinson joined Hendricks’s conspiracy to engage in financial transactions designed to conceal or disguise a listed attribute of the funds. Based on the evidence proven at trial, the jury could have reasonably inferred that Robinson knew the purpose of removing the drug proceeds from the country because, among other reasons, the government showed that Robinson regularly flew money for Hendricks to St. Martin and was a close confidante of Hendricks’s. In addition, subsequent to the original briefing in this case, Fleming submitted a 28(j) letter pro se, asking us to consider, among other things, the impact of United States v. Santos, 128 S.Ct. 2020 (2008) on his money laundering conspiracy conviction. Fleming asks for his conviction on this count to be reversed because the government failed to show, as the plurality in Santos would have required, that the “proceeds” that Fleming laundered were profits, rather than gross receipts, from the drug conspiracy. However, as Justice Alito points out in his dissent, “five Justices agree with the position” that “the term ‘proceeds’ ‘include[s] gross revenues from the sale of contraband and the operation of organized crime syndicates involving such sales.’” Santos, S.Ct. at 2035 & n.1 (quoting Justice Stevens’s concurrence). Therefore, even if the government did not show that the money involved in Fleming’s money laundering conviction was profits from the drug sales, his conviction on this count must stand because, as we have stated, 8 the term “proceeds” includes gross revenues for drug sales. We have carefully considered all of the other claims and conclude that none have merit. III. For the reasons stated above, we will affirm the judgments of conviction. 9 

United States Court of Appeals for the Federal Circuit ______________________ CREWZERS FIRE CREW TRANSPORT, INC., Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee. ______________________ 2013-5104 ______________________ Appeal from the United States Court of Federal Claims in No. 11-CV-0607, Judge Susan G. Braden. ---------------------- CREWZERS FIRE CREW TRANSPORT, INC., Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee. ______________________ 2013-5105 ______________________ Appeal from the United States Court of Federal Claims in No. 12-CV-0064, Judge Susan G. Braden. ______________________ 2 CREWZERS FIRE CREW TRANSPORT v. US Decided: February 6, 2014 ______________________ CYRUS E. PHILLIPS, IV, Albo & Oblon, L.L.P., of Ar- lington, Virginia, argued for plaintiff-appellant. ELLEN M. LYNCH, Trial Attorney, Commercial Litiga- tion Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant- appellee. With her on the brief were STUART F. DELERY, Assistant Attorney General, JEANNE E. DAVIDSON, Direc- tor, BRYANT G. SNEE, Deputy Director, and SHELLEY D. WEGER, Trial Attorney. Of counsel on the brief was AZINE FARZAMI, Attorney, Office of the General Counsel, General Law Division, United States Department of Agriculture, of Washington, DC. ______________________ Before RADER, Chief Judge, CLEVENGER, and REYNA, Circuit Judges. REYNA, Circuit Judge. Crewzers Fire Crew Transport, Inc. (“Crewzers”) ap- peals from two related decisions of the United States Court of Federal Claims dismissing its causes of action for lack of jurisdiction. See Crewzers Fire Crew Transport, Inc. v. United States, 111 Fed. Cl. 148 (2013) (“Crewzers I”); Crewzers Fire Crew Transport, Inc. v. United States, 111 Fed. Cl. 267 (2013) (“Crewzers II”). In each decision, the trial court held that a blanket purchase agreement (“BPA”) between Crewzers and the United States Forest Service was not a binding contract invoking jurisdiction under the Tucker Act, 28 U.S.C. § 1491(a). For the rea- sons below, we affirm. CREWZERS FIRE CREW TRANSPORT v. US 3 I. On March 30, 2011, Crewzers became one of several awardees under a BPA with the Forest Service to provide crew carrier buses. These buses are heavy duty vehicles used to transport fire crews to wildfires and other disaster areas located within regional and national wilderness zones. Two weeks later, on April 11, 2011, Crewzers was awarded another multiple-award BPA from the Forest Service, this time to provide flame retardant tents to disaster areas as needed. Both BPAs established dispatch priority lists that ranked each awardee’s available re- sources (e.g., crew carrier buses or flame retardant tents) within each of six geographic zones. When an emergency arose, the Forest Service was to submit an order for the highest-ranked (i.e., lowest-priced) resource available on the dispatch priority list within the relevant geographic zone. Once the Forest Service submitted an order for a particular resource and the contractor decided to accept the order, a contract was formed and the contractor was obligated to provide the requested resource in response to the identified emergency. These BPAs are thus appropri- ately characterized as frameworks for future contracts— “a set of ground rules as it were, and no obligations are assumed by either party until orders are given by the Government and accepted by the contractor.” Modern Sys. Tech. Corp. v. United States, 979 F.2d 200, 204 (Fed. Cir. 1992) (internal quotations omitted). According to the agreements, “If a Contractor cannot be reached or is not able to meet the time and date need- ed, the dispatcher may proceed with contacting the next resource on the dispatch priority list.” BPA § D.6.5.1. The Forest Service was also given the discretion to devi- ate from these dispatch priority lists as needed to respond effectively to actual fire conditions. The BPAs explicitly provided that any such deviations would “not be deemed a violation of any term or condition of this Agreement.” BPA § D.6.1.c. 4 CREWZERS FIRE CREW TRANSPORT v. US Because of the sporadic and unpredictable nature of wildfires and other emergencies, the Forest Service did not make any guarantee that it would actually place orders under these BPAs. By the same token, the terms of the BPAs required Crewzers to accept orders only to the extent it was “willing and able[,]” as noted in the clause below: This solicitation will result in multiple agree- ments. The dollar limitation for any individual order is $150,000.00 Since the needs of the Gov- ernment and availability of Contractor’s resources during an emergency cannot be determined in ad- vance, it is mutually agreed that, upon request of the Government, the Contractor shall furnish the resources listed herein to the extent the Contractor is willing and able at the time of order. Due to the sporadic occurrence of Incident activity, the placement of any orders IS NOT GUARANTEED. BPA § B, Pricing & Estimated Quantity (emphasis add- ed). In August 2011, the Forest Service notified Crewzers that it was terminating its BPA for crew carrier buses after Crewzers allegedly responded to several orders with unauthorized vehicles and, in one instance, attempted to bill the Forest Service at a higher-than-authorized rate. In November 2011, the Forest Service also terminated Crewzers’s BPA for flame retardant tents after Crewzers allegedly provided tents that did not meet the BPA’s specifications or, in some cases, failed to deliver the tents on time. Crewzers filed separate suits in the Court of Federal Claims challenging both terminations and assert- ing, among other things, that the Forest Service acted in bad faith. In both suits, Crewzers sought a declaratory judgment that it was entitled to breach of contract dam- ages, or alternatively, to reinstatement of the BPAs. CREWZERS FIRE CREW TRANSPORT v. US 5 On May 31, 2013, the Court of Federal Claims issued nearly identical opinions in both cases granting the Government’s motions to dismiss for lack of jurisdiction. The trial court held that the BPAs between Crewzers and the Forest Service were not binding contracts because they lacked “the necessary mutuality of consideration required for an enforceable contract[.]” Crewzers I, 111 Fed. Cl. at 158; Crewzers II, 111 Fed. Cl. at 276. The trial court therefore concluded that it lacked jurisdiction under the Tucker Act, 28 U.S.C. § 1491(a). Crewzers appealed the dismissals to this Court on July 12, 2013. We have jurisdiction over these appeals, which were consolidated for argument purposes, pursuant to 28 U.S.C. § 1295(a)(3). II. To invoke the Court of Federal Claims’s jurisdiction under the Tucker Act, a contractor must first show that its claims arose out of a valid contract with the United States. 1 Therefore, the question here on appeal is wheth- er Crewzers presented a well-pleaded allegation that the BPAs between Crewzers and the United States constitut- ed binding contracts sufficient to establish Tucker Act jurisdiction—a question of law reviewed de novo. See, e.g., Ridge Runner Forestry v. Veneman, 287 F.3d 1058, 1061 (Fed. Cir. 2002). “To be valid and enforceable, a contract must have both consideration to ensure mutuality of obligation 1 Under the Tucker Act, the Court of Federal Claims has jurisdiction “to render judgment upon any claim against the United States founded . . . upon any express or implied contract with the United States[.]” 28 U.S.C. § 1491(a)(1). The Tucker Act also gives the trial court jurisdiction over claims or disputes arising under the Contract Disputes Act. See id. § 1491(a)(2). 6 CREWZERS FIRE CREW TRANSPORT v. US . . . and sufficient definiteness so as to provide a basis for determining the existence of a breach and for giving an appropriate remedy.” Ace-Federal Reporters, Inc. v. Barram, 226 F.3d 1329, 1332 (Fed. Cir. 2000) (internal quotations omitted) (internal citations omitted). “A promise or apparent promise is not consideration if by its terms the promisor or purported promisor reserves a choice of alternative performances . . . .” Restatement (Second) of Contracts § 77 (1979). We hold that Crewzers has failed to present a non- frivolous allegation that the BPAs at issue here are bind- ing contracts. These BPAs reflect illusory promises that do not impose obligations on either party. The Forest Service is not required under the terms of the BPAs to place any orders with Crewzers. Likewise, Crewzers promised only to accept orders to the extent it is “willing and able[,]” and is thus perfectly free not to accept any orders at all. “It is axiomatic that a valid contract cannot be based upon the illusory promise of one party, much less illusory promises of both parties.” Ridge Runner, 287 F.3d at 1062 (citing Restatement (Second) of Contracts § 71(1)). Our previous decisions in Ridge Runner and Modern Systems Technology Corporation are instructive on this issue. See Ridge Runner Forestry v. Veneman, 287 F.3d 1058 (Fed. Cir. 2002); Modern Sys. Tech. Corp. v. United States, 979 F.2d 200 (Fed. Cir. 1992). In Ridge Runner, we concluded that a tender agreement issued by the Forest Service—which contained language nearly identi- cal to Crewzers’s BPAs—lacked the required mutuality of obligation to be considered a valid contract. 2 Just like 2 Although the agreement at issue in Ridge Runner was not labeled a “blanket purchase agreement,” we have noted in the past that “we should not be blinded by how CREWZERS FIRE CREW TRANSPORT v. US 7 Crewzers’s BPAs, the agreement in Ridge Runner provid- ed that, “upon request of the government, the contractor shall furnish the equipment offered herein to the extent the contractor is willing and able at the time of order.” 297 F.3d at 1060 (emphasis original). The agreement further warned that the Forest Service could not “guaran- tee there will be a need for the equipment offered nor does it guarantee orders will be placed against the awarded agreements.” Id. Based on this language, we held that the tender agreement was not a binding contract: The Agreements contained no clause limiting the government’s options for firefighting services; the government merely “promised” to consider using Ridge Runner for firefighting services. Also, the Tender Agreement placed no obligation upon Ridge Runner. If the government came calling, Ridge Runner “promised” to provide the requested equipment only if it was “willing and able.” Id. at 1062. This same “willing and able” language is present in Crewzers’s BPAs. Therefore, just as in Ridge Runner, we must conclude that this language placed no obligation on Crewzers to accept orders from the Forest Service and cannot provide the consideration necessary to create a binding contract. Crewzers has pointed us to nothing else in the BPAs that would obligate Crewzers to accept orders from the Forest Service. 3 one labels a contract.” Ace-Federal Reporters, 226 F.3d at 1331. 3 Crewzers argues that Ridge Runner is not control- ling because the contractor in that case sought money damages pursuant to a contract claim under the Contract Disputes Act, whereas Crewzers here is seeking “equita- ble relief under the Contract Disputes provisions.” Crewzers’s attempt to distinguish monetary claims from 8 CREWZERS FIRE CREW TRANSPORT v. US We reached the same conclusion in Modern Systems with respect to a basic pricing agreement issued by the United States Postal Service. In Modern Systems, this Court affirmed “on the basis” of the trial court’s opinion, which concluded that the basic pricing agreement was not a binding contract because “the Postal Service is not obligated to place any orders, and . . . the contractor is not bound unless it accepts an order. The effect of this . . . is that the [basic pricing agreement] itself does not create any enforceable obligations between either party.” Mod- ern Sys., 979 F.2d at 202. To be sure, we do not rely on Modern Systems as any form of precedent and, to avoid confusion as to what constitutes precedent in this Court, we no longer affirm “on the basis of” a trial court’s opin- ion. We nevertheless find persuasive, and particularly applicable here, the reasoning in Modern Systems given the structure of the agreements in question, which do not require the Government to order any work from the contractor even if the need for such work arises, and also do not require the contractor to accept the work if or- dered. Id. at 206. Crewzers argues that our decision in Ace-Federal Reporters mandates a finding that its BPAs are, in fact, binding contracts. See Ace-Federal Reporters, Inc. v. Barram, 226 F.3d 1329 (Fed. Cir. 2000). We disagree. Ace-Federal Reporters concerned a multiple award sched- nonmonetary claims brought under the Contract Disputes Act has no basis in law, as the trial court’s jurisdiction in both instances depends on the existence of a valid and enforceable contract between the contractor and the United States. See 28 U.S.C. § 1491(a)(2); 41 U.S.C. § 7102(a) (providing that the Contract Disputes Act applies to “any express or implied contract . . . made by an executive agency” for the procurement of property, ser- vices, construction, or disposal of personal property). CREWZERS FIRE CREW TRANSPORT v. US 9 ule contract for transcription and court reporting services. Under this contract, “as consideration for the contractors’ promises regarding price, availability, delivery, and quantity, the government promised that it would pur- chase only from the contractors on the schedule, with few exceptions” that allowed agencies to deviate from the schedule only by obtaining a waiver from the General Services Administration pursuant to 48 C.F.R. § 8.404-3 (1999). 4 Id. at 1332-33 & n.2. We held that the Govern- ment’s promise provided sufficient consideration because of the “substantial business value” in limiting the compe- tition pool to “between two and five authorized sources in each of the designated geographic regions,” instead of the “18,000 other transcription services” available. Id. at 1332. In contrast, there is no language in the BPAs at issue here that requires the Forest Service to purchase re- sources only from the contractors on the BPAs’ dispatch priority lists, much less to purchase under specific terms, i.e., value and quantity. The BPAs explicitly provided that “the number of fire orders in process and actual fire conditions at the time of dispatch may require a deviation from normal procedures in order to respond effectively to such conditions.” BPA § D.6.1.c. Furthermore, “[a]ny such deviation will be within the discretion of [the] Gov- ernment, and will not be deemed a violation of any term or condition of this Agreement.” Id. (emphasis added). This nearly unfettered discretion to vary from normal proce- 4 This schedule contract was thus akin to— although not exactly the same as—a requirements con- tract. Under a requirements contract, the buyer agrees to exclusively use the seller for all of its needs, and the seller has the legal obligation to fulfill those needs. See Torncel- lo v. United States, 231 Ct. Cl. 20, 681 F.2d 756, 768-69 (1982). 10 CREWZERS FIRE CREW TRANSPORT v. US dures is much different from the defined, limited excep- tions available to the Government in Ace-Federal Report- ers. Nor is there any language that requires Crewzers to ensure the availability of the requested resources. Under the terms of the BPAs, Crewzers is required to respond to an order only if “willing and able[.]” The BPAs also do not impose any penalties on Crewzers for failing to maintain the availability of its resources. As provided in the BPAs, “If a Contractor cannot be reached or is not able to meet the time and date needed, the dispatcher may proceed with contacting the next resource on the dispatch priority list.” BPA § D.6.5.1. Unlike the schedule contract in Ace- Federal Reporters, Crewzers’s BPAs do not impose any binding obligations on the parties and cannot be used to invoke Tucker Act jurisdiction. We therefore affirm the decision of the Court of Federal Claims dismissing Crewzers’s suits for lack of jurisdiction. III. We have considered the parties’ other arguments, but they do not affect the outcome of our decision. We there- fore affirm the decision of the Court of Federal Claims. AFFIRMED COSTS Each side shall bear its own costs. 

133 F.Supp.2d 354 (2001) AIR PRODUCTS AND CHEMICALS, INC; Tesco Corporation, and Tesco Drilling Technology, Inc., Plaintiff, v. MG NITROGEN SERVICES, INC., International Nitrogen Services, L.L.C., and Messer Griesheim Industries, Inc., Defendant. No. Civ.A. 00-457-SLR. United States District Court, D. Delaware. February 28, 2001. *355 Gregory P. Williams, Richards, Layton & Finger, Wilmington, DE, for plaintiff. Philip Trainer, Jr., Ashby & Geddes, Wilmington, DE, for defendants. MEMORANDUM ORDER SUE L. ROBINSON, District Judge. At Wilmington this 28th day of February, 2001, IT IS ORDERED that defendant's motion to dismiss or, alternatively, to stay or transfer the case (D.I.18) is granted in part and denied in part. The case shall be transferred to the United States District Court for the Southern District of Texas — Houston Division for the reasons that follow: 1. Plaintiff Air Products and Chemicals, Inc. ("Air Products") is a Delaware corporation with its principal place of business in Allentown, Pennsylvania. (D.I.17, ¶ 2) Air products makes and sells membrane equipment for producing gas streams rich in oxygen. (Id.) It sells that equipment for a variety of applications, including the production of nitrogen for on-site injection in oil well drilling applications. (Id.) Air Products customers include plaintiffs Tesco Corporation ("Tesco Corp.") and Tesco Drilling Technology, Inc. ("Tesco Drilling") (collectively, "Tesco"). (D.I.17, ¶ 5) Air Products has agreed to indemnify its customers who are accused of infringement for using Air Products equipment. (D.I. 20 at 6) 2. Plaintiff Tesco Corp. is a Canadian corporation with its principal place of business in Canada. Tesco Corp. is a supplier of oil and gas equipment and drilling services *356 to the oil and gas industry outside the United States. (D.I.17, ¶ 3) 3. Plaintiff Tesco Drilling is a Delaware corporation with its principal place of business in Houston, TX. (D.I.17, ¶ 4) 4. Defendant MG Nitrogen Services, Inc ("MG Nitrogen") was a Delaware corporation with its principal place of business in Malvern, Pennsylvania. (D.I.17, ¶ 6) It no longer exists as a corporate entity. (D.I. 22 at 1 n. 1) It is, however, the listed owner of United States patent nos. B1 5,388,650; 5,749,422; 5,862,869; and 6,041,873 ("the patents-in-suit"). (D.I.17, ¶¶ 9, 11-13) 5. Messer Griesheim Industries, Inc. ("MGI") is a Delaware corporation with its principal place of business in Malvern, Pennsylvania. MGI claims an ownership interest in the patents-in-suit. (D.I.17, ¶¶ 8, 10) 6. International Nitrogen Services, L.L.C. ("INS") is a Delaware L.L.C. with its principal place of business in Houston, Texas. INS is the exclusive licensee of the patents-in-suit. (D.I.17, ¶¶ 7, 14) 7. On April 28, 2000, INS and MGI filed suit in the United States District Court for the Southern District of Texas against Tesco and Tesco Drilling alleging infringement of the patents-in-suit. See International Nitrogen Servs., L.L.C. and MG Indus., Inc. v. Tesco Corporation and Tesco Drilling Tech. Inc., C.A. No (H-00-1432) (S.D.Tex. filed Apr. 28, 2000) ("the Texas case"). 8. On May 5, 2000, Air Products filed this declaratory judgment action against MG-Nitrogen, INS and MGI for a declaration of noninfringement and invalidity of the same four patents-in-suit. (D.I.1) 9. On June 30, 2000, MG Nitrogen, INS, and MGI filed a motion to dismiss the complaint outright, stay the proceedings until the resolution of the Texas case, or transfer it to the United States District Court for the Southern District of Texas — Houston Division. (D.I.8) 10. On September 8, 2000, Air Products amended its complaint to include Tesco and Tesco Drilling as plaintiffs. (D.I.17) 11. On September 29, 2000, MG Nitrogen, INS, and MGI filed a motion to dismiss the amended complaint outright, stay the proceedings until the resolution of the Texas case, or transfer it to the United States District Court for the Southern District of Texas — Houston Division. (D.I.18) 12. NG Nitrogen, INS, and MGI (referred to collectively as "patentee") allege that Tesco Drilling and Tesco Corp. (referred to collectively as "Tesco") directly infringe the process claims of the patents-in-suit. Although the patentee claims that Air Products is a contributory infringer and/or is inducing infringement (D.I. 19 at 4), the patentee has chosen to sue only Tesco for infringement. The patentee argues that it is entitled, as the first to file, to proceed with its lawsuit in Texas. 13. The Federal Circuit has recognized the first to file rule noting that, "as a principle of sound judicial administration, the first suit should have priority, absent special circumstances." Kahn v. General Motors Corp., 889 F.2d 1078, 1081 (Fed. Cir.1989), quoting William Gluckin & Co. v. International Playtex Corp., 407 F.2d 177, 178 (2d Cir.1969). 14. Plaintiffs Air Products and Tesco recognize the first to file rule but insist that the "mere customer" exception to the first to file rule should be invoked. Since Tesco is a customer of Air Products and Air Products must indemnify Tesco for Tesco's infringement, plaintiffs argue that Air Products is the real party in interest and, therefore, should have its choice of forum recognized. 15. The Supreme Court has held, "[i]f the patentee's suit against a customer is brought in a district where the manufacturer cannot be joined as a defendant, the manufacturer may be permitted simultaneously to prosecute the declaratory judgment action elsewhere." Kerotest Mfg. v. *357 C-O-Two Fire Equip. Co., 342 U.S. 180, 186, 72 S.Ct. 219, 96 L.Ed. 200 (1952). 16. Here, however, it is undisputed that Air Products, the manufacturer of a device used to infringe the claims of the patents-in-suit, can be named as a defendant in Texas. (D.I. 12 at 11) Thus, the exception in Kerotest Mfg. does not apply. 17. The Federal Circuit recognized the "customer suit" exception to the first to file rule "where the first suit is filed against a customer who is simply a reseller of the accused goods." Kahn, 889 F.2d at 1081. The court noted that "[t]he customer suit exception is based on the manufacturer's presumed greater interest in defending its actions against charges of patent infringement, and to guard against possibility of abuse." Id. 18. Here, however, Tesco is not merely a reseller of the membrane equipment. The patentee alleges that Tesco directly infringes the patents-in-suit by using Air Products' membrane equipment in nitrogen production units ("NPUs") to generate nitrogen-rich gaseous streams for use as a drilling fluid in oil and gas drilling and to enhance drilling fluids and well completions. (D.I. 19 at 4) Tesco's use of the NPUs, of which the Air Products' membrane equipment is just a part, directly infringes the claims-in-suit, while Air Products' sale of the equipment only induces or contributes to infringement. (Id.)[1] 19. The facts of record do not fit within any exception to the first to file rule. However, since Air Products will ultimately be liable for Tesco's infringement as a direct infringer, contributory infringer, or indemnitor, it has a significant interest in participating in this litigation. This court, therefore, has declaratory judgment jurisdiction pursuant to 28 U.S.C. § 2201. 20. Nevertheless, the interests of judicial economy dictate that an action involving the same patents-in-suit and most of the same parties should not proceed simultaneously in two different district courts. 21. Title 28, section 1404(a) provides: For the convenience of parties and witnesses, in the interests of justice, a district court may transfer any civil action to any other district or division where it might have been brought. 22. The court concludes that the interests of justice favor that this case be transferred to the United States District Court for the Southern District of Texas—Houston Division. NOTES [1] The allegations that Air Products only indirectly infringes the patents-in-suit are made on information and belief. The patentee has reserved the right to assert direct infringement of the patents-in-suit by Air Products in the event that evidence is discovered-demonstrating direct infringement.

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-13-00312-CR CLINTON DRAKE DAUGHERTY APPELLANT V. THE STATE OF TEXAS STATE ---------- FROM THE 355TH DISTRICT COURT OF HOOD COUNTY ---------- MEMORANDUM OPINION 1 ---------- Appellant Clinton Drake Daugherty appeals from his ten-year sentence for robbery and fifty-year sentence for aggravated assault. We affirm the trial court’s judgment. 1 See Tex. R. App. P. 47.4.  I. BACKGROUND Appellant was charged by indictment with one count of aggravated robbery causing serious bodily injury to Brandon Barks (count one), one count of aggravated assault causing serious bodily injury to Victoria Brown (count two), one count of aggravated assault causing serious bodily injury to Barks (count three), and one count of aggravated assault with a deadly weapon on Brown (count four). The indictment also contained two enhancement paragraphs alleging that Appellant was previously convicted of the felony offenses of engaging in organized criminal activity and evading arrest with a prior conviction. The indicted offenses arose from a fight that broke out at Barks’s home, which involved Appellant, Barks, Brown, and Victoria Dixson, and resulted in Appellant stealing money from Barks and causing permanent disfigurement to Brown’s lips. The State later amended count one to allege robbery causing bodily injury to Barks. Before trial, the State announced it would only proceed on counts one and two—the robbery of Barks and the aggravated assault of Brown—and that it would not seek a deadly-weapon finding. 2 Appellant then pleaded guilty to counts one and two, pleaded true to the enhancement paragraphs, and did not waive his right to have a jury assess his punishment. See Tex. Code Crim. Proc. Ann. art. 26.14 (West 2009). Both count one and count two as charged were second-degree felonies enhanced to first-degree felonies subject to punishment 2 The State later dismissed the remaining two counts. 2 by imprisonment “for life or for any term of not more than 99 years or less than 5 years.” Tex. Penal Code Ann. § 12.32(a) (West 2011); see also id. § 12.42(b) (West Supp. 2013), §§ 22.02, 29.02 (West 2011). At the punishment hearing, the amended indictment was read to the jury and Appellant pleaded guilty to counts one and two and true to the enhancement paragraphs. The State introduced evidence of the underlying offenses and evidence that Appellant was prone to violence and was a member of a white- supremacy gang. Appellant proffered witnesses who testified that Appellant was not a member of a white-supremacy gang, was a good person, and deserved leniency. The trial court charged the jury that Appellant had pleaded guilty to counts one and two and had pleaded true to the enhancement paragraphs and instructed the jury to “find the defendant guilty as charged in Counts One and Two of the indictment and to find the enhancement paragraphs true, and to assess his punishment as herein provided.” See Holland v. State, 761 S.W.2d 307, 313 (Tex. Crim. App. 1988) (explaining propriety of trial court charging jury to return verdict of guilty and to decide only issue of punishment after defendant pleads guilty to felony offense before the jury), cert. denied, 489 U.S. 1091 (1989). During its punishment deliberations, the jury sent out a note asking, “Are the sentences served concurrently?” See generally Tex. Code Crim. Proc. Ann. art. 36.27 (West 2006) (prescribing process by which jury may communicate with trial court). The trial court proposed to answer the question “I cannot answer 3 your question,” to which Appellant did not object. Thus, the written answer was delivered to the jury. Later, the jury sent out a second note: “Please define robbery. Who are considered victims in count two?” The trial court’s proposed answer was: “One, ‘a person commits robbery if, in the course of committing theft and with intent to obtain or maintain control of the property, he intentionally, knowingly[,] or recklessly causes bodily injury to another.’ Two, [t]he victim in count two is Victoria Brown, as alleged in the indictment.” Appellant objected “as to improper comment on the weight of the evidence [because] it’s not in the original charge, and it would be an indication that would be improper to pursue right now.” The trial court overruled Appellant’s objection and presumably sent its written response to the jury. The jury assessed Appellant’s punishment at ten years’ confinement for count one and fifty years’ confinement for count two. The trial court sentenced Appellant accordingly and ordered the sentences to run concurrently. Appellant filed a motion for new trial, which was overruled by operation of law. See Tex. R. App. P. 21.8(c). Appellant now appeals and argues that the trial court’s response to the jury’s second note was in error, which caused him some harm. II. DISCUSSION A. LAW REGARDING JURY-QUESTION ANSWERS In evaluating a jury-charge issue, we first determine whether error exists. Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). If error occurred, 4 whether it was preserved determines the degree of harm required for reversal. Id. Error in jury instructions, if timely objected to in the trial court, requires reversal if the error was “calculated to injure the rights of [the] defendant,” which means no more than that there must be some harm to the accused from the error. Tex. Code Crim. Proc. Ann. art. 36.19 (West 2006); see Reeves v. State, No. PD-1711-12, 2013 WL 5221142, at *2 (Tex. Crim. App. Sept. 18, 2013) (unanimous opinion). Answers given by a trial court in response to jury questions are considered supplemental jury instructions; thus, the trial court must comply with the requirements applicable to jury charges and, accordingly, may not express any opinion as to the weight of the evidence or otherwise discuss the facts. See Tex. Code Crim. Proc. Ann. art. 36.14 (West 2007), art. 36.16 (West 2006); Lucio v. State, 353 S.W.3d 873, 875 (Tex. Crim. App. 2011). Although a trial court may not single out a particular piece of evidence in its instructions to the jury, this rule does not “necessarily apply” if the trial court is responding to a question regarding a subject identified by the jury. Lucio, 353 S.W.3d at 877. Further, a response that refers to the original jury charge does not equate to an additional instruction. See Earnhart v. State, 582 S.W.2d 444, 450 (Tex. Crim. App. 1979). B. ANSWER DEFINING ROBBERY Appellant first attacks the trial court’s response to the jury’s request for a definition of robbery. Appellant points to the indictment, which alleged only knowingly and intentionally as the culpable mens rea, and asserts that the trial 5 court’s definition of robbery, which included recklessly as a culpable mens rea, was erroneous. This error, Appellant asserts, violated his statutory right to have the jury assess his punishment for the charge to which he pleaded guilty. See Tex. Code Crim. Proc. Ann. art. 26.14. Indeed, the indictment charged Appellant with “intentionally or knowingly” causing bodily injury to Barks while in the course of committing theft of property. But in responding to the jury’s general request for a definition of robbery, the trial court gave the jury the definition of robbery exactly as set out in the penal code: “[I]f, in the course of committing theft . . . and with intent to obtain or maintain control of the property, he intentionally, knowingly, or recklessly causes bodily injury to another.” Tex. Penal Code Ann. § 29.02(a)(1). Although the lesser culpable mental state of recklessness was not alleged in the indictment, Appellant’s guilty plea to the greater culpable mental states of intentional and knowing necessarily included a like plea to the culpable mental state of recklessness. See Patterson v. State, 46 S.W.3d 294, 303–04 (Tex. App.—Fort Worth 2001, no pet.) (holding “[b]ecause the jury found that appellant knowingly caused serious bodily injury to [the victims], it necessarily found that there was sufficient proof to support a finding that she recklessly caused serious bodily injury to them”); cf. Little v. State, 659 S.W.2d 425, 426 (Tex. Crim. App. 1983) (holding jury charge on lesser-included offense with culpable mental state of recklessness not error when greater offense alleged in indictment included only culpable mental states of intentionally and knowingly). Additionally, because 6 Appellant’s guilt was not at issue, any definition of robbery was not “the law applicable to the case” and, therefore, would not be governed by article 36.14. See Tex. Code Crim. Proc. Ann. art. 36.14. The trial court’s response was not erroneous. See Lucio, 353 S.W.3d at 877. We need not proceed to a harm analysis. Kirsch, 357 S.W.3d at 649. C. ANSWER SPECIFYING VICTIM Appellant next asserts that the trial court’s identification of Brown as the victim in response to the jury’s question improperly emphasized certain evidence and, thus, was erroneous. The State posits that the jury was confused regarding the charged victim because “there were no application paragraphs to delineate who was the victim in count one and two” and because “Appellant assaulted multiple people the night of the offense, including two women . . . named Victoria.” Appellant concedes that “[t]he jury’s confusion [was] perfectly understandable.” The trial court’s response merely referred the jury back to the indictment, which had been read to the jury at the beginning of the punishment trial and alleged that Brown was the victim. As recognized above, a communication from the trial court in response to a jury question that merely refers the jury to the original charge is not considered a supplemental instruction subject to the dictates applicable to a jury charge. See Earnhart, 582 S.W.2d at 450. Therefore, the trial court’s response referring the jury to the indictment was not a supplemental instruction and cannot be held to have impermissibly varied from 7 articles 36.14 or 36.16. See Franklin v. State, 363 SW.2d 137, 138 (Tex. Crim. App. 1962). Even if the response were considered a supplemental instruction, it did not improperly comment on the weight of the evidence because the identification of Brown as the victim in the indictment was “an objective conclusion based on the record concerning a dispute among the jury.” See Green v. State, 912 S.W.2d 189, 193 (Tex. Crim. App. 1995), cert. denied, 516 U.S. 1021 (1996). Further, Appellant had pleaded guilty to assaulting Brown; therefore, the identification of Brown as the victim was not a fact at issue for the jury and did not impermissibly single out a particular piece of evidence regarding a disputed fact. See Lucio, 353 S.W.3d at 877 (“[T]he trial court did not improperly comment on the weight of the evidence in its answer, which provided a correct statement of the law without expressing any opinion as to the weight of the evidence or assuming the existence of a disputed fact.” (emphasis added)). In the absence of an erroneous instruction, we need not proceed to a harm analysis. See Kirsch, 357 S.W.3d at 649. 8  III. CONCLUSION Because the trial court did not err in its responses to the jury’s second note, we overrule Appellant’s issue and affirm the trial court’s judgment. PER CURIAM PANEL: GABRIEL, MCCOY, and MEIER, JJ. DO NOT PUBLISH Tex. R. App. P. 47.2(b) DELIVERED: March 20, 2014 9 

92 S.W.3d 270 (2002) Donald C. EDMISTEN, Respondent, v. DIRECTOR OF REVENUE, Appellant. No. WD 60807. Missouri Court of Appeals, Western District. November 19, 2002. Motion for Rehearing and/or Transfer December 24, 2002. Application for Transfer Denied January 28, 2003. *271 Sarah E. Ledgerwood, Asst. Atty. Gen., Jefferson City, for appellant. Michael Chester McIntosh, Independence, for respondent. Before HAROLD L. LOWENSTEIN, P.J., JAMES M. SMART, JR., and THOMAS H. NEWTON, JJ. Motion for Rehearing and/or Transfer to Supreme Court December 24, 2002. JAMES M. SMART, JR., Judge. The Director of Revenue appeals the ruling of the trial court ordering reinstatement of the driver's license of Donald Edmisten. Edmisten's license was revoked for refusing a breathalyzer test after he was stopped and arrested for driving while intoxicated. Because we determine that the Director showed that the officer had probable cause to believe Edmisten was driving while intoxicated, we reverse the ruling of the trial court. Factual Background The facts are viewed in a light favorable to the decision of the trial court. See Long v. Director of Revenue, 65 S.W.3d 545, 548 (Mo.App.2001). The Director's *272 evidence is, in any event, uncontradicted in this case. On January 18, 2001, William Tomlin, a deputy sheriff with the Platte County Sheriff's Department, was stopped at about 12:19 a.m. on eastbound 45 Highway at a stop light by the I-29 exit ramp. He observed a black pickup and a red passenger vehicle at the bottom of the exit ramp from northbound I-29. They were not pulled up to the stop line. The pickup was about one car length back, with the red car behind it. The vehicles were waiting to make a left turn on westbound 64th Street (45 Highway). The left turn lane had a green light, but the vehicles did not move. The red vehicle then went around the pickup by going onto the shoulder. The driver of the red vehicle waved at Tomlin. Tomlin rolled down his window, and the driver of the red vehicle made a statement to Tomlin.[1] Tomlin then parked on the shoulder and went to make contact with the driver of the pickup. As Tomlin reached the center island near the pickup, the driver of the pickup, who had been slumped over the wheel of the vehicle, sat up. At that time, he had another green light (after sitting through one full cycle of lights). The pickup then turned left and proceeded onto westbound 64th Street before Tomlin could make contact. Tomlin returned to his vehicle and followed. As the pickup proceeded, Tomlin observed several incidents of erratic driving. Between Chatham and Cosby on 64th Street, there are two lanes for westbound traffic. The pickup was in the left (inside) lane. The pickup swerved to the right and then swerved back into the left lane. The pickup then swerved to the left over the painted line and then returned to his lane. As the pickup proceeded west to Cosby and 64th, it encountered construction barrels in the left lane. Tomlin observed the pickup come very close to striking the barrels before swerving to the right lane at the last moment. At that point, Tomlin activated his emergency lights and siren and conducted a traffic stop. Donald Edmisten was operating the pickup. The officer informed Edmisten why he had stopped him. Edmisten denied each of the items the officer stated he had observed. The officer noticed an odor of alcohol, and noticed that Edmisten's speech was slurred. Edmisten said he drank two beers earlier in the evening. Deputy Tomlin asked him if he would be willing to step out and take some field sobriety tests. Edmisten declined, stating he "wasn't taking any tests." Tomlin then asked him to exit his vehicle, and Edmisten replied that he "wasn't getting out." After Tomlin shut off the vehicle to reduce the temptation for Edmisten to drive off, Tomlin told him firmly that he "needed to exit the vehicle." Edmisten then complied. As Edmisten was getting out, Officer Tomlin informed him he was under arrest for driving while intoxicated because of the officer's observations and Edmisten's responses. After the officer informed him he was under arrest, Edmisten asked if the officer could "give him a break," because he had experienced a *273 "rough two years." Officer Tomlin said no. Officer Tomlin stated that, based on his observations of Edmisten being slumped over the steering wheel through a cycle of traffic lights, observing him weave twice from his lane in different directions, observing him almost strike the construction barrel, and personally observing him and talking with him after the stop, Officer Tomlin formed the opinion that Edmisten was driving while intoxicated. On cross-examination, Officer Tomlin acknowledged that, apart from the items mentioned in his direct testimony, he did not observe Edmisten do anything improper. The deputy acknowledged he was not familiar with Edmisten's normal speech patterns and did not know his physical capabilities as to balance. The deputy described Edmisten's balance, walking, and turning as "fair," as far as the little he observed in taking Edmisten into custody. The deputy acknowledged that Edmisten was a large man, and that overweight people tend to have more trouble with balance tests. In summary, no substantive contradiction of the direct testimony emerged from the cross-examination. Edmisten had stipulated before trial that he refused to submit to a chemical test. He also acknowledged he was under arrest at the time of his refusal. Therefore, the only issue to be tried in the case was the issue of whether Deputy Tomlin had reasonable grounds to believe Edmisten was driving while intoxicated. After the Director's evidence, Edmisten declined to present evidence. Therefore, the only evidence before the court was the testimony of Deputy Tomlin. At the conclusion of arguments, the court stated that "the purpose of the field sobriety test is to provide the probable cause for believing that a driver is intoxicated." The court stated that the Director had not met his burden in the case. The court granted the petition for reinstatement. The Director appeals. Standard of Review This court will uphold the decision of the trial court unless there is no substantial evidence to support the decision, the decision is against the weight of the evidence, or the trial court has erroneously declared or applied the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Pursuant to § 577.041 RSMo 2000, a driver whose license has been revoked for refusal to take a breathalyzer test may request a hearing before a court of record. At that hearing, the judge is to determine whether the person was arrested, whether the arresting officer had "reasonable grounds" to believe that the person was driving while intoxicated, and whether the person refused to submit to the chemical test. Berry v. Director of Revenue, 885 S.W.2d 326, 327 (Mo. banc 1994); § 577.041.4. Unless all three of these questions are answered in the affirmative, the court must reinstate the person's license to drive. Id.; § 577.041.5. Because of the stipulation concerning the arrest, and the refusal, the only issue in this case was whether the arresting officer had reasonable grounds to believe the driver was driving while intoxicated. Section 577.041.4(2)(a) requires a determination of whether the arresting officer had reasonable grounds to believe that the individual was driving while in an intoxicated condition. "Reasonable grounds" and "probable cause" are virtual synonyms. Wilcox v. Director of Revenue, 842 S.W.2d 240, 242 (Mo.App.1992). This was a hearing in a civil breathalyzer refusal and administrative suspension case, and not a hearing in a criminal DWI case; therefore, there was no requirement of *274 proof beyond a reasonable doubt. Rather, the issue was whether the Director presented evidence showing that the officer possessed probable cause to believe that Edmisten was driving while intoxicated. See Id. at 244. "Although mere suspicion is insufficient to establish probable cause, absolute certainty is not required." Id. at 243. The test for probable cause is satisfied "when an officer possesses facts which would justify a person of reasonable caution to believe that an offense has been or is being committed and that the individual to be arrested committed it." Id. at 242. The court stated: Probable cause is evaluated from the vantage point of a prudent, cautious, and trained police officer at the scene at the time of arrest. In examining the existence of probable cause, courts consider the information possessed by the officer before the arrest and the reasonable inferences drawn therefrom. To form a belief amounting to probable cause, the arresting officer need not possess all the information concerning the offense and the arrestee's participation in it. Id. at 243 (citations omitted). Analysis The Director argues the following facts supported the probable cause determination: (1) Edmisten was slumped onto the wheel of his vehicle through an entire cycle of stop light changes; (2) Edmisten's driving was erratic; (3) Edmisten had an odor of alcohol; (4) Edmisten's speech was slurred; (5) Edmisten's eyes were watery and bloodshot; (6) Edmisten acknowledged the drinking of alcohol; and (7) Edmisten refused to take the field sobriety tests. We agree. While the cross-examination of the officer showed that the officer made no claim to omniscience, the cross-examination did nothing to diminish the substantial evidence of probable cause. The concept of "absolute certainty," on which the crossexamination was based, appears nowhere in the statute. Id. at 243. While there was evidence that the officer was not absolutely certain of Edmisten's intoxication, there was no evidence which undercut the probable cause determination. Contrary to the trial court's view of the law, the refusal to take field sobriety tests is evidence of intoxication. State of Missouri v. Myers, 940 S.W.2d 64, 65 (Mo. App.1997). It is not essential that field sobriety tests be performed in order to show reasonable grounds. Todd A. Brown v. Director of Revenue, 85 S.W.3d 1 (Mo. banc, 2002); Terry v. Director of Rev., 14 S.W.3d 722, 724 (Mo.App.2000). The fact that Edmisten refused the field sobriety tests provides absolutely no basis for ordering reinstatement of Edmisten's license. The trial court was mistaken in stating that "the purpose of the field sobriety test is to provide the probable cause for believing that a driver is intoxicated." In Brown, the trial court reversed a revocation based upon testimony that the field sobriety tests (which the driver reportedly failed) were improperly administered. The Supreme Court agreed that the improperly administered field sobriety tests must be disregarded, but upheld the revocation on the basis of the remainder of the officer's observations. Id. In Brown, it was uncontradicted that the driver made an illegal left turn, did not pull over immediately, crossed or hit the centerline, had watery, bloodshot eyes, smelled of intoxicants, and swayed or took heavy steps while walking to the police car. Id. In this case, Edmisten appeared to be dozing at the wheel, then drove erratically, denied that he had driven erratically, had an odor of alcohol, slurred his speech, admitted having some beers, refused to take *275 any tests, and initially refused to get out of the car. This evidence was uncontradicted. Officer Tomlin had reasonable grounds to believe Edmisten was intoxicated. Wilcox, 842 S.W.2d at 242. Conclusion The trial court misapplied and erroneously declared the law. Moreover, the decision of the trial court was against the weight of the evidence. The decision of the trial court reinstating Edmisten's license is reversed. The revocation of Edmisten's license is reinstated. LOWENSTEIN and NEWTON, JJ., concur. NOTES [1] The statement was excluded from evidence pursuant to a hearsay objection. This was an incorrect evidentiary ruling. It is important to recognize that when the Director is attempting to show that the officer had reasonable grounds to believe that the subject in question was driving while intoxicated, statements made to the officer by third parties are offered to show the information possessed by the officer at that time, whether or not the statement was true. The accuracy of the statement of a third party is not at issue in a reasonable grounds determination. See Wilcox v. Director of Revenue, 842 S.W.2d 240, 242 (Mo.App.1992). Thus, such statements are admissible for the purpose of showing what the officer knew at that time.

148 S.W.3d 711 (2004) Mark D. JOHNSON, Appellant, v. STRUCTURED ASSET SERVICES, LLC, Appellee. No. 05-03-00075-CV. Court of Appeals of Texas, Dallas. October 29, 2004. *715 John M. Gillis, Dallas, for appellant. Earl S. Nesbitt, Nesbit & Vassar, L.L.P., Addison, for Appellee. Before Justices WHITTINGTON, LANG, and LANG-MIERS. *716 OPINION Opinion by Justice LANG-MIERS. This is an appeal from a judgment entered in an interpleader action involving structured settlement payments. Appellant Mark D. Johnson and appellee Structured Asset Services, LLC (Structured Asset) were the competing claimants. Johnson appeals the Final Judgment in favor of Structured Asset, awarding it funds that were placed in the registry of the court by Integrity Life Insurance Company, Inc., pursuant to a structured settlement agreement. Johnson argues that the trial court erred by concluding that he waived an anti-assignment provision in that agreement and that he was estopped from raising that provision as a defense, that the trial court erred in awarding all of the monthly payments to Structured Asset when only a portion of each payment had been assigned, and that the trial court erred by concluding that the underlying assignment was not against public policy. We affirm. I. FACTUAL AND PROCEDURAL BACKGROUND Appellant Johnson filed and settled a lawsuit seeking recovery for injuries he sustained when he was struck by a car.[1] As part of the settlement, Johnson received a lump sum payment in the amount of $702,000 as well as future structured settlement payments as follows: (1) $2,000 per month from December 1986 to November 1991 (sixty months); (2) $2,500 per month from December 1991 to November 1996 (sixty months); (3) $3,000 per month from December 1996 to November 2001 (sixty months); (4) $3,500 per month from December 2001 to November 2006 (sixty months); (5) $4,000 per month from December 2006 to November 2011 (sixty months); (6) $4,500 per month from December 2011 to November 2016 (sixty months); (7) $5,000 per month from December 2016 to November 2021 (sixty months); and (8) $5,500 per month from December 2021 to November 2026 (sixty months). The terms of the Settlement Agreement also provided that: [s]aid payments cannot be accelerated, deferred, increased, or decreased by [Johnson] and no part of the payments called for herein or any assets of the Defendant and/or the Insurers is to be subject to the execution or any legal process for any obligation in any manner, nor shall [Johnson] have the power to sell or mortgage or encumber same, or in any part thereof, nor anticipate the same, or any part hereof, by assignment or otherwise. The Home Insurance Company was obligated to make the future settlement payments to Johnson and purchased an annuity from Integrity to fund those payments. It assigned the obligation to make the payments and the ownership of the annuity to Equitable Life Assurance Society. Johnson approved that assignment. In December 1986, Integrity began making the monthly payments to Johnson. In February 1998, Johnson saw a television commercial for Stone Street Capital, Inc., advertising that it would pay a lump sum in return for the assignment of future payments due under structured settlements. Johnson called the advertised 1-800 telephone number to learn more about *717 it. Johnson submitted his Application for Sale of Periodic Payments and Stone Street responded with a written offer to purchase a portion of Johnson's future monthly payments. Johnson signed the letter, accepting the offer, and returned it to Stone Street. Stone Street agreed to pay Johnson $132,844 in exchange for Johnson's assignment of his future monthly payments as follows: (1) $2,500 per month from March 1998 to November 2001 (forty-five months); (2) $3,000 per month from December 2001 to November 2006 (sixty months); and (3) $3,500 per month from December 2006 to February 2011 (fifty-one months). These assigned monthly payments were $500 per month less than the total of each monthly payment due to Johnson under the structured settlement and did not include assignment of future payments after February 2011. Stone Street agreed to receive the total monthly payment and send Johnson the $500 due to him each month. Johnson signed the documents that Stone Street sent to him.[2] Stone Street wired four payments totaling $130,344 to Johnson's bank account pursuant to the written wiring instructions.[3] Johnson used $83,000 to buy a house and $17,000 or $18,000[4] to complete the loan payments on his truck. In March of 1998, Stone Street assigned the Annuity Payment Purchase Agreement with Johnson to Settlement Trust with Stone Street as servicer and agent for Settlement Trust. On April 20, 1998, Equitable received a letter addressed to Integrity from Johnson changing the beneficiary of his policy to the "Mark D. Johnson Trust" with the address of 18351 Kuykendahl, No. 251, Spring, Texas XXXXX-XXXX, which is the address for Stone Street's lock box.[5] The letter did not mention Johnson's assignment of the settlement proceeds to Stone Street. Equitable confirmed these changes and notified Integrity to make the change. Stone Street received the eleven monthly payments from April 1998 to February 1999 and sent $500 of each monthly payment to Johnson. In February 1999, without contacting Stone Street, Johnson faxed a letter to Integrity directing that the monthly payments should go to his residence instead of to Stone Street's lock box. As a result, Johnson received four of the monthly payments from March to June 1999.[6] In June *718 1999, Stone Street sued Johnson in the Circuit Court of Montgomery County, Maryland, in a case styled Stone Street Capital, Inc. v. Mark D. Johnson, Civil No. 200298. Johnson was personally served with the Maryland lawsuit on June 26, 1999. The Maryland court granted a Preliminary Injunction on July 7, 1999, ordering Johnson to stop redirecting any of the monthly payments to himself and directing Integrity to send the monthly payments to Stone Street's lock box in Spring, Texas. Johnson did not appear or take any action in the Maryland lawsuit and did not comply with the orders entered by the Maryland court. On July 24, 2000, the Maryland court entered a Default Judgment and Order against Johnson and awarded Stone Street damages and injunctive relief as well as the periodic monthly payments.[7] Integrity attempted to comply with the Maryland Judgment by making the monthly payments to Stone Street. However, Johnson demanded that Integrity send him the monthly payments and threatened to sue if it ignored his instructions. Johnson also submitted a change of address form to the U.S. Postal Service directing that items sent to him care of Stone Street's lock box at 18351 Kuykendahl, No. 251, Spring, Texas XXXXX-XXXX be sent to his residence at 95 Leesburg, Texas 75451. In June of 2002, Structured Asset took over Stone Street's position as servicer and agent for Settlement Trust. Eventually, both Structured Asset and Johnson were demanding that Integrity send them the payments. As a result of these competing demands, Integrity filed this interpleader action on September 4, 2001, naming Johnson and Stone Street as interpleader defendants. Integrity also deposited $27,000, the sum of the annuity benefits subject to the competing claims, with the Clerk of the Court. On October 15, 2001, Johnson filed his Original Answer generally denying the allegations and asserting a general claim to the funds. On November 29, 2001, Structured Asset filed its Plea in Intervention and Original Cross Claim. Johnson did not oppose Structured Asset's intervention. Integrity filed its Non-Suit of Stone Street. On July 12, 2002, Johnson filed his unverified First Amended Original Answer asserting several affirmative defenses. Johnson did not specifically plead contractual anti-assignment language as an affirmative defense. At mediation, Johnson and Structured Asset settled with Integrity and agreed that Integrity would be dismissed with prejudice from the interpleader action.[8] The settlement agreement between Johnson, Structured Asset, and Integrity left one issue remaining for the trial court to decide: Who was entitled to receive the interpleaded funds, Structured Asset or Johnson? On October 22, 2002, after a one day trial, the trial court rendered a Final Judgment in favor of Structured Asset *719 awarding it all of the funds in the registry of the court, including any interest accrued on the funds, approximately $60,500, but less the $6,000 in attorneys' fees to be paid to Integrity. The Final Judgment also awarded Structured Asset the right to receive monthly payments as follows: (1) $3,000 per month from August 19, 2002 to November 2006 (fifty-two months); and (2) $3,500 per month from December 2006 to February 2011 (fifty-one months). The trial court issued Findings of Fact and Conclusions of Law on November 19, 2002. Johnson appeals the Final Judgment entered in favor of Structured Asset. II. ANTI-ASSIGNMENT PROVISIONS In his first issue on appeal, Johnson argues that the trial court erred when it concluded that he waived the anti-assignment provision in the settlement agreement and that he was estopped from raising the anti-assignment clause as a defense. Structured Asset argues that this issue was waived because Johnson failed to raise it at trial, that he is estopped from relying on the anti-assignment clause, and that he waived his rights under that clause. A. Standard of Review The findings of fact are binding upon the parties and the appellate court because they are not challenged on appeal. Hotel Partners v. KPMG Peat Marwick, 847 S.W.2d 630, 632 (Tex.App.-Dallas 1993, no writ); Kershner v. State Bar of Texas, 879 S.W.2d 343, 347-48 (Tex.App.-Houston [14th Dist.] 1994, writ denied). However, the appellate court may review the conclusions the trial court draws from or applies to the facts found to determine their correctness. Linton v. Airbus Industrie, 934 S.W.2d 754, 757 (Tex.App.-Houston [14th Dist.] 1996, writ denied). B. Waiver of Issue on Appeal Structured Asset argues that Johnson has waived the anti-assignment clause as an affirmative defense because he raised it for the first time on appeal. Although Johnson did not specifically plead the anti-assignment clause in his unverified First Amended Original Answer as an affirmative defense, the trial court record demonstrates that the anti-assignment clause was addressed at trial. A party's unpleaded issue may be deemed tried by consent when evidence on the issue is developed under circumstances indicating that both parties understood the issue was in the case, and the other party fails to make an appropriate complaint. Tex.R. Civ. P. 67; see Frazier v. Havens, 102 S.W.3d 406, 411 (Tex.App.-Houston [14th Dist.] 2003, no pet.). To determine whether an issue was tried by consent, the reviewing court must examine the record, not for evidence of the issue, but rather for evidence of trial of the issue. Hoggett v. Brown, 971 S.W.2d 472, 496 n. 4 (Tex.App.-Houston [14th Dist.] 1997, pet. denied). At trial, Structured Asset stated in argument that, "[Johnson's] trying to narrow it down to simply a contractual anti-assignment provision that [he] waived, and it's not that simple. So I would ask — I think it would benefit the Court if we actually submit a formal post-trial brief on those issues." Structured Asset's post trial brief specifically addressed the issue of the enforceability of the anti-assignment clause. In its Conclusions of Law, the trial court ruled on the merits of the issue, concluding that "Johnson waived any contractual provisions in the 1986 Settlement Agreement and other underlying settlement *720 documents which purported to restrict his right to assign the Periodic Payments," and that "Johnson is estopped from raising anti-assignment language in the underlying settlement documents as a defense in this case." As a result, the enforceability of the anti-assignment clause was raised as an issue at trial and we conclude that Johnson did not waive this issue. Tex.R. Civ. P. 67. C. Applicable Law 1. Choice of Law Johnson argues that the laws of the Commonwealth of Pennsylvania are to be applied to his agreement with Stone Street. In support of his argument, Johnson refers to a choice of law provision in the agreement entitled "Governing Law; Venue "that states: [Stone Street] is a corporation incorporated under the laws of the Commonwealth of Pennsylvania. This Agreement, the other Closing Documents, and the obligations of the parties hereunder and thereunder shall be governed, interpreted, construed, and enforced in accordance with the laws of the Commonwealth of Pennsylvania and the United States of America. The parties hereto waive the right to be sued elsewhere and agree and consent to the jurisdiction of any court of competent jurisdiction located in the Commonwealth of Pennsylvania. A trial court's determination of choice of law is a question of law and is reviewed de novo. Pittsburgh Corning Corp. v. Walters, 1 S.W.3d 759, 769 (Tex.App.-Corpus Christi 1999, pet. denied). Generally, the parties' contractual choice of law will be given effect if the contract bears a reasonable relationship to the chosen state and no countervailing public policy of the forum demands otherwise. SAVA Gumarska in Kemijska Industria D.D. v. Advanced Polymer Sciences, Inc., 128 S.W.3d 304, 314 (Tex.App.-Dallas 2004, no pet.). However, a preliminary motion must be filed asking the court to apply another state's laws. Pittsburgh Corning, 1 S.W.3d at 769 (citing General Chem. Corp. v. De La Lastra, 852 S.W.2d 916, 919-20 (Tex.1993)); see also Tex.R. Evid. 202. Absent a motion by a party, the law of Texas may be applied to a dispute. Pittsburgh Corning, 1 S.W.3d at 769. Also, in the absence of a request to take judicial notice or proper proof that the law of another state is applicable, Texas courts presume a sister state's laws are the same as Texas law. Burns v. Resolution Trust Corp., 880 S.W.2d 149, 151 (Tex.App.-Houston [14th Dist.] 1994, no writ); Mathis v. Wachovia Bank and Trust Co., N.A., 583 S.W.2d 800, 802 (Tex.Civ.App.-Houston [1st Dist.] 1979, writ ref'd n.r.e.). The record does not contain a motion, written or verbal, requesting that the trial court apply the laws of the Commonwealth of Pennsylvania, providing it with a recitation of Pennsylvania law, or directing where it could find the relevant Pennsylvania law. Also, there is nothing in the record showing that either party advised the trial court that there was a choice of law issue or pointed out the distinctions between the laws of Pennsylvania and Texas regarding the matter in controversy. There is only one reference to Pennsylvania law in the record. At the beginning of the trial, the parties discussed the Maryland judgment and counsel for Johnson stated, "Stone Street had an office that they were dealing with him here in Texas. And I was — it was my understanding they were in Pennsylvania. When I went back to look at the contract to see if [Johnson] had agreed to Maryland, it's not — there is a forum selection clause in there, but it's still a different state. I think Pennsylvania." *721 However, Johnson did not argue that the trial court should apply Pennsylvania law. On appeal, Johnson argues in a single sentence that Pennsylvania law should apply, but refers this court to no case law on choice of law. Further, neither Johnson nor Structured Asset briefed Pennsylvania law. Instead, to support his first issue on appeal, Johnson relies exclusively on cases from the Eastern District of Pennsylvania, Kentucky, the District of Vermont, and Wisconsin.[9] Structured Asset responds to Johnson's first issue on appeal with a detailed analysis of an Oklahoma case as well as citing to Texas case law.[10] In support of his third issue on appeal, Johnson refers this court to a case from the District of Vermont, while Structured Asset cites to an Oklahoma case.[11] As a result, we will assume that the trial court properly applied Texas law. See Pittsburgh Corning, 1 S.W.3d at 769. 2. Texas Law The word "assignment" has a comprehensive meaning and in its most general sense means the transfer or setting over of property, or some right or interest. University of Texas Medical Branch at Galveston v. Allan, 777 S.W.2d 450, 452 (Tex.App.-Houston [14th Dist.] 1989, no writ). An assignment is a contract between the assignor and assignee, and operates by way of agreement or contract. Id. at 453. Anti-assignment clauses are enforceable unless rendered ineffective by a statute. Reef v. Mills Novelty Co., 126 Tex. 380, 89 S.W.2d 210, 211 (1936); see also Texas Development Co. v. Exxon Mobil Corp., 119 S.W.3d 875, 879 (Tex.App.-Eastland 2003, no writ); Texas Farmers Insurance Company v. Gerdes, 880 S.W.2d 215, 218 (Tex.App.-Fort Worth 1994, writ denied); Texas Pacific Indem. Co. v. Atlantic Richfield Co., 846 S.W.2d 580, 583 (Tex.App.-Houston [14th Dist.] 1993, writ denied). In the absence of a successful attack upon an anti-assignment clause, a party is entitled to have the trial court enforce it. Texas Pacific Indem. Co., 846 S.W.2d at 583. A successful attack on an anti-assignment clause may be made through the application of contract law. See generally Texas Development Co., 119 S.W.3d at 884; University of Texas Medical Branch at Galveston, 777 S.W.2d at 453. a. estoppel Estoppel arises where one party has been induced to change his position for the worse because of the conduct of another party. Massachusetts Bonding & Ins. Co. v. Orkin Exterminating Co., 416 S.W.2d 396, 401 (Tex.1967). The doctrine of estoppel can only be invoked where the conduct of one of the parties has been such as to induce action in reliance upon it, and where it would operate as a fraud upon the assured if they were afterwards allowed to disavow their conduct. Id. Estoppel by contract is a form of "quasi estoppel" based on the idea that a party to a contract will not be permitted to take a position *722 inconsistent with its provisions, to the prejudice of another. Stevens v. State Farm Fire and Casualty Co., 929 S.W.2d 665, 672 (Tex.App.-Texarkana 1996, writ denied); Zieben v. Platt, 786 S.W.2d 797, 802 (Tex.App.-Houston [14th Dist.] 1990, no writ); Hawn v. Hawn, 574 S.W.2d 883, 886 (Tex.App.-Eastland 1978, writ ref'd n.r.e.). The rule of estoppel by contract is not really one of estoppel, as estoppel in pais, rather it is just another way of saying that a party is bound by the terms of his contract unless it is void, annulled, or set aside in some way. Stevens, 929 S.W.2d at 672. b. waiver of contractual rights Contractual rights can be waived. Abraxas Petroleum Corp. v. Hornburg, 20 S.W.3d 741, 749 (Tex.App.-El Paso 2000, no pet.). A party can waive contract provisions that are in the contract for his benefit. Joiner v. Elrod, 716 S.W.2d 606, 609 (Tex.App.-Corpus Christi 1986, no writ). A waiver occurs when a party either intentionally relinquishes a known right or engages in intentional conduct inconsistent with claiming that right. In re Epic Holdings, Inc., 985 S.W.2d 41, 57 (Tex.1998); Sun Exploration and Production Company v. Benton, 728 S.W.2d 35, 37 (Tex.1987); see also Texas Development Co., 119 S.W.3d at 884. Essentially, a waiver is unilateral in character; it results as a legal consequence from some act or conduct of the party against whom it operates; and no act of the party in whose favor it is made is necessary to complete it. U.S. Fidelity & Guaranty Co. v. Bimco Iron & Metal Corp., 464 S.W.2d 353, 358 (Tex.1971); Massachusetts Bonding & Ins. Co., 416 S.W.2d at 401. A waiver does not need to be founded upon a new agreement, supported by consideration, or based upon estoppel. U.S. Fidelity, 464 S.W.2d at 358. However, a waiver presupposes full knowledge of an existing right. Massachusetts Bonding & Ins. Co., 416 S.W.2d at 401. In order to establish a waiver of rights under a contract, there must be proof of an intent to relinquish a known right. Huffington v. Upchurch, 532 S.W.2d 576, 580 (Tex.1976); see also Abraxas, 20 S.W.3d at 750. A party's express renunciation of a known right can establish a waiver. Tenneco, Inc. v. Enterprise Products, Company, 925 S.W.2d 640, 643 (Tex.1996); see also Texas Development Co., 119 S.W.3d at 884. A party's silence or inaction for a period of time long enough to show an intention to yield the known right, is also enough to prove a waiver. Tenneco, Inc., 925 S.W.2d at 643; see also Texas Development Co., 119 S.W.3d at 884. An anti-assignment clause can be waived and the laws governing the waiver of contractual rights apply. See generally Texas Development Co., 119 S.W.3d at 884; University of Texas Medical Branch at Galveston, 777 S.W.2d at 453. c. assignor cannot defeat rights of assignee After making a valid assignment, an assignor loses all control over the chose and can do nothing to defeat the rights of the assignee. University of Texas Medical Branch at Galveston, 777 S.W.2d at 453. Once the assignee performs its obligations under the assignment and notice of the assignment is provided to the obligor, the assignment is irrevocable and the assignor does not have the authority to prejudice or defeat the assignee's rights under the assignment. See id. An assignor cannot urge estoppel or waiver against his assignee after making a valid assignment. Id. D. Application of the Law to the Facts In his first issue on appeal, Johnson argues that the trial court erred in holding *723 that the anti-assignment provision in the Settlement Agreement is unenforceable. Specifically, Johnson argues that his assignment to Stone Street is unenforceable and void, or voidable based upon the anti-assignment language in the Settlement Agreement. Structured Asset argues that Johnson is estopped and waived his rights under the anti-assignment clause.[12] Johnson does not challenge the trial court's Findings of Fact, but challenges its legal conclusions. Linton, 934 S.W.2d at 757. This court may review the trial court's conclusions from the facts found to determine their correctness. Id. The trial court's unchallenged findings determined, in part, that: (1) Johnson entered into a Periodic Payment Right Purchase Agreement with Stone Street Capital, Inc. dated on or about February 22, 1998; (2) Under the terms of the Purchase Agreement, Johnson sold, assigned, transferred, and conveyed to Stone Street Capital, Inc. all of Johnson's right, title, and interest in and to certain structured settlement and annuity payments to which Johnson was entitled. Specifically, Johnson sold, assigned, transferred, and conveyed to Stone Street Capital, Inc. the following payments: forty-five (45) monthly payments of $2,500.00 each from March 1998 through November 2001; sixty (60) monthly payments of $3,000.00 each from December 2001 through November 2006; and fifty-one (51) monthly payments of $35,00.00 each from December 2006 through and including February 2011; (3) Stone Street Capital, Inc. paid to Johnson the sum of $130,344 in connection with the closing transaction described in the Purchase Agreement; (4) After the 1998 Transaction was closed and funded and after Johnson received the Purchase Price, Johnson honored, complied with, and performed under the Purchase Agreement for a period of time and several of the Periodic Payments were received by Stone Street Capital, Inc. and/or its successors and assigns; (5) After the 1998 Transaction was closed and funded, Johnson did not object to or complain of the receipt of several monthly Periodic Payments by Stone Street Capital, Inc. and/or its successors and assigns; (6) Johnson did not offer to rescind the contract and return the moneys paid to Johnson in connection with the Purchase Agreement and the 1998 Transaction until he filed his First Amended Answer in July of 2002, more than four (4) years after the Purchase Agreement was signed and the 1998 Transaction was closed and funded. This court is bound by the trial court's Findings of Fact because they have not been challenged on appeal. Hotel Partners, 847 S.W.2d at 632; Kershner, 879 S.W.2d at 347-48. Based upon the Findings of Fact, the trial court reached the following conclusions *724 of law regarding the enforceability of the anti-assignment provision: (1) Johnson waived any contractual provisions in the 1986 Settlement Agreement and other underlying settlement documents which purported to restrict his right to assign the Periodic Payments; (2) Johnson is estopped from raising anti-assignment language in the underlying settlement documents as a defense in this case; (3) Johnson ratified the terms of the Purchase Agreement and the 1998 Transaction after the Purchase Agreement was signed and after the 1998 Transaction was closed; (4) Johnson had the capacity/standing to assign the Periodic Payments pursuant to the Purchase Agreement. This court concludes that the trial court's Findings of Fact support its Conclusions of Law. Johnson entered into a contract with Stone Street assigning his rights to the monthly payments, preventing him from taking a position inconsistent with that assignment. Stevens, 929 S.W.2d at 672. Johnson expressly waived any contractual right he had to assert the anti-assignment provision of the Settlement Agreement by signing the Purchase Agreement, which contained a waiver of restrictions on assignability that states the following: WAIVER OF RESTRICTIONS ON ASSIGNABILITY [Johnson] acknowledges that, to the extent that the Settlement Documents purport to contain any restriction on the assignability of the Periodic Payments or the Periodic Payment Rights, that such restriction was not intended to prevent [Johnson] from entering into and carrying out the terms of this Agreement. [Johnson] further acknowledges that any and all restrictions on the assignability of the Periodic Payments or the Periodic Payment Rights were included in the Settlement Documents for [Johnson's] benefit and not for the benefit or protection of any other person. For the benefit of [Stone Street], [Stone Street's] assigns, the Annuity issuer, the Owner and the Primary Obligor, or any Settlement Agreement Obligor, and on behalf of [Johnson] and [Johnson's] heirs, beneficiaries, executors, administrators, and legal representatives, [Johnson] hereby WAIVES AND RELEASES all rights and benefits of [Johnson] in, to, or under, any and all restrictions on assignability contained in the Settlement Documents. To the extent that any such restriction was included in order to assure [Johnson] of certain favorable tax treatment under Section 104(a)(2) of the Internal Revenue Code of 1986, as amended, [Johnson] acknowledges that [Johnson] is not relying on any representation or warranty from the [Stone Street] with respect to the tax effect or tax treatment of any payments made to [Johnson] hereunder, or the tax effect of any other element of the transactions contemplated by this Agreement. To the extent that any such restriction was included for any other purpose, [Johnson] acknowledges that [Johnson] is not relying upon any representation or warranty of the [Stone Street] with respect to the waiver contained herein. To the extent legally permissible, [Johnson] waives the benefit of any law requiring a court order to effectuate an assignment of the Periodic Payments or the Periodic Payment Rights. See Tenneco, Inc., 925 S.W.2d at 643. In addition, Johnson's intention to yield or waive his rights under the anti-assignment provision is demonstrated by his silence or failure to object to Stone Street's receipt *725 of the monthly payments for approximately eleven months. Texas Development Co., 119 S.W.3d at 884. Once Stone Street performed its obligations under the assignment by paying Johnson $130,344 and offsetting the remaining $2,500 Johnson had received, and Johnson sent the letter to Equitable requesting a change in the beneficiary and showing Stone Street's lock box as the return address, the assignment became irrevocable and Johnson no longer had the authority to prejudice or defeat Stone Street's or its assignee's rights under the assignment. University of Texas Medical Branch at Galveston, 777 S.W.2d at 453.[13] Johnson's first issue on appeal is overruled. III. AWARD OF INTERPLEADED FUNDS In his second issue on appeal, Johnson argues that the trial court erred in awarding all of the periodic payments to Structured Asset because only a portion of each such payment had been assigned and because there is no evidence to support an award of all the periodic monthly payments. Structured Asset argues that the award of the payments and moneys on deposit with the trial court was supported by the evidence and, therefore, proper. A. Inadequate Briefing Texas Rule of Appellate Procedure 38.1(h) requires appellate briefs to "contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Points of error are waived if an appellant fails to support his contention by citations to appropriate authority, or cites only to a single non-controlling case. Wolfe v. C.S.P.H., Inc., 24 S.W.3d 641, 647 (Tex.App.-Dallas 2000, no pet.); see also Tong v. State, 25 S.W.3d 707, 710 (Tex.Crim.App.2000), cert. denied 532 U.S. 1053, 121 S.Ct. 2196, 149 L.Ed.2d 1027 (2001). This rule does not prohibit an appellant from making a novel argument for which there is no authority "directly on point." However, a novel contention must be grounded in analogous case law or provide a relevant jurisprudential framework for evaluating the claim. See Tong, 25 S.W.3d at 710. B. Application of the Law to the Facts Johnson has failed to present a clear and concise argument with appropriate citations to authority to support his second issue on appeal, that the trial court erred in awarding all of the periodic monthly payments to Structured Asset because there was no evidence to support the award. Also, Johnson fails to support his contention in analogous case law or provide the relevant jurisprudential framework for evaluating his claim. Tong, 25 S.W.3d at 710. Therefore, Johnson's second point of error is inadequately briefed and is waived. Tex.R.App. P. 38.1(h). Nevertheless, even if Johnson's second issue was not waived, when considering a no-evidence challenge, the appellate court must view the evidence in a light that tends to support the finding of the disputed facts and disregard all evidence and inferences to the contrary. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex.2001); see also Anthony Equipment Corp. v. Irwin Steel Erectors, Inc., 115 S.W.3d 191, 204 (Tex.App.-Dallas 2003, pet. dism'd); Kershner, 879 S.W.2d at 346. If more than a scintilla of evidence supports the *726 challenged finding, the no-evidence challenge must fail. Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex.2003). In an interpleader action, each party making a claim to the funds at issue bears the burden of establishing his right to the funds. McBryde v. Curry, 914 S.W.2d 616, 620 (Tex.App.-Texarkana 1995, writ denied). The record shows that contrary to Johnson's claims, the trial court only awarded Structured Asset the money deposited in the registry of the court and the right to receive monthly payments pursuant to the terms of its agreement with Johnson as follows: (1) $3,000 per month from August 19, 2002 to November 2006 (fifty-two months); and (2) $3,500 per month from December 2006 to February 2011 (fifty-one months). These amounts are $500 per month less than the monthly payments due under the structured settlement agreement, consistent with the terms of Johnson's assignment to Stone Street. Further, the record shows that the trial court may have offset Johnson's portion of the money deposited in the registry of the court, approximately $11,000, by the amount of the monthly payments belonging to Structured Asset, which he had previously diverted to himself, approximately $10,000. Therefore, we conclude that Johnson's second issue is also without merit because the trial court did not award all of the periodic payments to Structured Asset. Johnson's second issue on appeal is overruled. IV. PUBLIC POLICY In his third issue on appeal, Johnson argues that the trial court erred by entering conclusions of law that the transaction between Johnson and Stone Street subsequently assigned to Settlement Trust and serviced by Structured Asset "did not violate public policy" and "was not barred by public policy." Specifically, Johnson argues that the assignment is contrary to the public policy embodied in the Internal Revenue Code, 26 U.S.C.A. § 104(a)(2) (West 2003) and state statutes,[14] even though these statutes were enacted after he assigned his structured settlement payments. Structured Asset argues that the assignment is not against public policy, does not violate any statute, and is not immoral or wrong. A. Standard of Review Review of whether a contract violates public policy is a question of law, which is reviewed de novo. Ranger Ins. Co. v. Ward, 107 S.W.3d 820, 827 (Tex.App.-Texarkana 2003, pet. denied). In addition, review of a claim that a contract is against public policy should be approached with caution. Hirsch v. Texas Lawyers' Ins. Exchange, 808 S.W.2d 561, 564 (Tex.App.-El Paso 1991, writ denied). The rule that public policy precludes the enforcement of an otherwise valid contract should be applied cautiously and only in cases involving dominant public interests. Id.; Yancey v. Floyd West & Co., 755 S.W.2d 914, 924 (Tex.App.-Fort Worth 1988, writ denied). Accord Bank One v. Prudential Ins. Co., 878 F.Supp. 943, 966 (N.D.Tex.1995); Fidelity Deposit Co. v. Conner, 973 F.2d 1236, 1241 (5th Cir.1992). B. Applicable Law Contracts are subject to the public policy of the State. Ranger Ins. Co., 107 S.W.3d at 827. In examining an agreement to determine if it is contrary to *727 public policy, we look to whether the agreement has a tendency to injure the public good. Id. A state's public policy is embodied in its constitution, statutes, and the decisions of its courts. Texas Commerce Bank, N.A. v. Grizzle, 96 S.W.3d 240, 250 (Tex.2003); Churchill Forge, Inc. v. Brown, 61 S.W.3d 368, 373 (Tex.2001); Ranger Ins. Co., 107 S.W.3d at 827. a. Statutes The Internal Revenue Code and the Texas Settlement Protection Act regulate the transfer of structured settlement payments. The Internal Revenue Code imposes a tax equal to forty percent of the factoring discount on anyone who acquires structured settlement payment rights in a structured settlement factoring transaction. 26 U.S.C.A. § 5891 (West 2004). The tax does not apply if the transfer of the structured settlement payments was approved by a judgment, final order, or decree issued by a state court under the applicable state statute. See id. With the exception of § 5891(d), this section applies to transactions entered into on or after January 30, 2002. Act of Jan. 23, 2002, P.L. 107-134, § 115(c)(1), 115 Stat. 2436-39, 2438 (2001). Section 5891(d)(1) provides a tax clarification provision that is to be applied prospectively and retroactively[15] to structured factoring transactions stating that: [i]f the applicable requirements of sections 72, 104(a)(1), 104(a)(2), 130, and 461(h) were satisfied at the time the structured settlement involving structured settlement payment rights was entered into, the subsequent occurrence of a structured settlement factoring transaction shall not affect the application of the provisions of such sections to the parties to the structured settlement (including an assignee under a qualified assignment under section 130) in any taxable year. 26 U.S.C.A. § 5891(d)(1). The Texas Structured Settlement Protection Act requires the factoring company to provide the recipient of the structured settlement payments with disclosures prior to entering into a transfer agreement and requires court approval before it is effective. Tex. Civ. Prac. Rem.Code Ann. § 141.001-007 (Vernon Supp.2004-05). The Texas Structured Settlement Protection Act applies only to the transfer of structured settlement payments under a transfer agreement entered into on or after September 1, 2001. Act of Apr. 5, 2001, 77th Leg., R.S., ch. 96 § 3, 2001 Tex. Gen. Laws 173, 177. Further, the Texas Structured Settlement Protection Act may not be construed to imply that any transfer under a transfer agreement entered into before September 1, 2001, is valid or invalid. Tex. Civ. Prac. Rem.Code Ann. § 141.007(e). b. Decisions of Texas Courts While there is no standard definition or test that applies to all cases, courts generally find a contract violates public policy if it is illegal, or inconsistent with or contrary to the best interest of the public. Ranger Ins. Co., 107 S.W.3d at 827. An assignment may be invalidated by the courts if it is found to offend public policy. Coronado Paint Co., Inc. v. Global Drywall Systems, Inc., 47 S.W.3d 28, 31 (Tex.App.-Corpus Christi 2001, pet. denied), review denied as improvidently granted 104 S.W.3d 538 (2003). The Texas Supreme Court has held that certain types of assignments are invalid because they violate public policy: (1) an assignment of *728 a cause of action that works to collude against an insurance carrier; (2) an assignment of a legal malpractice claim; (3) an assignment that creates a Mary Carter agreement; (4) an assignment of the plaintiff's cause of action to a joint tortfeasor of the defendant; and (5) an assignment of interests in an estate that distorts the true positions of the beneficiaries. Id. However, a contract regarding the rights and obligations of the parties, which also contains a waiver, does not contravene public policy if the waiver is not against any legislatively created public policy. See Wolfe, 24 S.W.3d at 645. C. Application of the Law to the Facts Johnson's assignment to Stone Street is not one of the types of assignments determined by the Texas Supreme Court to violate public policy. Coronado Paint Co., Inc., 47 S.W.3d at 31. Accordingly, we look to whether his assignment of his structured settlement payments is against the public policy embodied in Texas' statutes. Because the underlying purpose of a structured settlement is not only to compensate an injured party, but also to protect that party from his own improvidence, a number of commentators, courts, and legislatures have become concerned by the growing number of companies, sometimes called "factoring companies," that purchase structured settlements from a personal injury victim by paying him immediate cash for the right to future payments under the settlement. In re Granati, 270 B.R. 575, 589 (Bankr.E.D.Va.2001)(citing Leo Andrada, Note, Structured Settlements: The Assignability Problem, 9 S.Cal. Interdisciplinary L.J. 465, 465 (2000)) affirmed 307 B.R. 827 (E.D.Va.2002) affirmed 63 Fed.Appx. 741 (4th Cir. 2003)(not selected for publication in the Federal Reporter). In response to these concerns, the federal government[16] and 38 states, including Texas,[17] have enacted *729 statutes regulating the transfer of structured settlement payments. These statutes promote the underlying policy of encouraging structured settlements, while also acknowledging that there are times when the recipient, for good reason, should have access to all or a portion of the structured settlement payments before they are due. See In re Chorney, 277 B.R. 477, 490 (Bankr.W.D.N.Y.2002). It appears that the various legislatures have determined that the solution is not to prohibit the assignment of structured settlement payments, but to require certain precautionary mechanisms that will safeguard recipients from possible abuse by factoring companies. See Settlement Funding, LLC. v. Jamestown Life Ins. Co., 78 F.Supp.2d 1349, 1364 (N.D.Ga.1999). The Texas Structured Settlement Protection Act is a paternalistic statute: it requires disclosures and court approval before any transfer of structured settlement payment rights. See In re Transfer of Structured Settlement Rights by Spinelli, 353 N.J.Super. 459, 803 A.2d 172, 177-78 (2002)(commenting that a similar New Jersey statute imposes a paternalistic function). This prospective statute is not determinative of this appeal because it was enacted after Johnson assigned his structured settlement payments to Stone Street and may not be construed to imply that any transfer of structured settlement payments under a transfer agreement entered into before September 1, 2001, is valid or invalid. See Act of Apr. 5, 2001, 77th Leg., R.S., ch. 96 § 3, 2001 Tex. Gen. Laws at 177. However, we are mindful of the public purpose and philosophy underlying the statute: to protect the recipients of structured settlement payments who are in need of cash from exploitation by factoring companies. See Spinelli, 353 N.J.Super. at 465; J.G. Wentworth v. Jones, 28 S.W.3d 309 (Ky.Ct.App.2000). Accordingly, we look to the decisions of federal and other state courts regarding the public policy surrounding the transfer of structured settlement payments. Since the federal government's enactment of § 5891 of the Internal Revenue Code and the 38 states' enactment of structured settlement protection acts, our research indicates that ten federal and state courts have reviewed whether the assignment of structured settlement payments is against public policy. Four federal courts considered the public policy relating to the assignment of structured settlement payments. Of these four federal courts, two bankruptcy courts and one district court have held that the assignment of structured settlement payments is not against public policy, while the Ninth Circuit held that it is. See In re Chorney, 277 B.R. at 490; In re Granati, 270 B.R. at 589-90; Settlement Funding, 78 F.Supp.2d at 1364; Short v. Singer Asset Finance Company, LLC, 107 Fed.Appx. 738 (9th Cir. 2004)(not selected for publication in the Federal Reporter). The Bankruptcy Court for the Western District of New York determined that these transactions were not against public policy in general. In re Chorney, 277 B.R. at 490. Looking to the state laws of Virginia and Pennsylvania, the Bankruptcy Court for the Eastern District of Virginia determined that there were no reported decisions in either state holding that a transfer of structured settlement payments is contrary to public policy. In re Granati, 270 B.R. at 589-90. Similarly, *730 the District Court for the Northern District of Georgia concluded that the assignment of structured settlement payments was not prohibited by public policy because neither the Virginia nor Georgia structured settlement protection acts completely prohibited the assignment of structured settlement payments. Settlement Funding, 78 F.Supp.2d at 1364. In contrast, the Ninth Circuit held that there is a uniform public policy against the assignment of structured settlement payments after noting the recent federal and Idaho statutory measures designed to deter factoring transactions. Short, 107 Fed.Appx. at 740. However, the dissent commented that Idaho also has a public policy interest in not permitting a recipient to keep the money received from the factoring company, while simultaneously avoiding his contractual obligations. Short, 107 Fed.Appx. at 742 (J., Callahan, dissenting). Six state courts have considered the public policy relating to the assignment of structured settlement payments. Of these six state courts, Oklahoma and Florida determined that the assignment of structured settlement payments is not against public policy, New Jersey recognized the state's policy favoring the freedom to make assignments, Kentucky held that it is against public policy, and Wisconsin and Georgia declined to address the issue. See In re Kaufman, 37 P.3d 845 (Okla.2001); State Farm Life Ins. Co. v. Florida Asset Financing Corp., 786 So.2d 1 (Fla.Dist.Ct.App.2000); Jones, 28 S.W.3d 309; J.G. Wentworth v. Callahan, 256 Wis.2d 807, 649 N.W.2d 694 (2002); CGU Life Insurance Co. v. Singer Asset Finance Co., LLC, 250 Ga.App. 516, 553 S.E.2d 8 (2001). The Supreme Court of Oklahoma noted that there is a public policy question regarding the assignment of structured settlements made before the effective date of the Oklahoma Structured Settlement Act. Kaufman, 37 P.3d at 854. However, it went on to state that based on the Oklahoma legislature's requirement that no implications be drawn on the validity of agreements to assign structured settlement payments entered into before the enactment of the Oklahoma Structured Settlement Act, it will not void the agreement on the public policy principles that underlay the statutory scheme. Id. The Fourth District Court of Appeals of Florida held that a tort victim's poor financial decision to assign his structured settlement payments for a severely discounted lump sum payment did not justify setting aside the assignment on public policy grounds. See State Farm, 786 So.2d at 3. Jones, 28 S.W.3d at 313. The Superior Court of New Jersey, did not decide the public policy issue. See Spinelli, 803 A.2d at 177-78. However, following its statutory approval process, the New Jersey Superior Court reviewed a proposed transfer of structured settlement payments, approved the transfer, and stated that it is because of situations where a recipient of a structured settlement "may [need] to muster assets in a way not [originally] contemplated .... that a state [also] has a compelling interest in securing the [recipient's] freedom to do so." Id. The Kentucky Court of Appeals held that a factoring company's attempts to enforce tort victims' assignments of their structured settlement payments failed based, in part, on public policy considerations. See Jones, 28 S.W.3d 309. This determination was based on the Kentucky court's conclusion that agreements to assign structured settlement payments were of a unique character and distinguishable from all other species of contracts. Id. at 313. However, the Kentucky court ultimately did not enforce the assignments based on its conclusion that the agreements assigning the structured settlement *731 payments were illusory because the assignor did not own an interest in the annuity. Id. at 314. Both Wisconsin and Georgia have declined to address the public policy issue relating to the assignment of structured settlement payments. The Court of Appeals for Wisconsin declined to address the public policy issue, but discussed the Kentucky Court of Appeals opinion in J.G. Wentworth v. Jones and noted the concerns of the Illinois legislature that these assignments could leave the intended recipient of the structured settlement payments penniless and without resources in the future. See Callahan, 649 N.W.2d at 701 n. 3. Similarly, the Court of Appeals of Georgia declined to address the public policy issue, instead affirming the trial court's finding that the Georgia Legislature had not established a public policy either disfavoring or favoring the assignability of payments under a structured settlement. CGU Life, 553 S.E.2d at 14. We agree with the majority of the courts that the assignment of structured settlement payments is not against public policy. As a result, we conclude that Johnson's transfer of his right to receive structured settlement payments was not against any legislatively created public policy or prohibited by the decisions of the Texas courts. See Wolfe, 24 S.W.3d at 645. Johnson's third issue on appeal is overruled. VI. CONCLUSION This court concludes that the trial court did not err when it determined that Johnson waived the anti-assignment provision in the settlement agreement and that he was estopped from raising the anti-assignment clause as a defense. This court also concludes that Johnson's complaint that the trial court erred in awarding all of the periodic payments to Structured Asset because there was no evidence supporting such an award was inadequately briefed, is waived, and is without merit because the trial court did not award all of the periodic payments to Structured Asset. Further, this court concludes that the transaction between Johnson and Stone Street, which was subsequently assigned to Settlement Trust and is serviced by Structured Asset, does not violate public policy. The trial court's judgment is affirmed. Tex.R.App. P. 43.2(a). NOTES [1] The personal injury lawsuit was styled Mark Beckering a/k/a Mark Johnson v. Floyd V. Yarger and Builders Transportation, et al., Cause No. 85-288, 86th Judicial District Court, Rockwall County, Texas. [2] Those documents included the Periodic Payment Right Purchase Agreement, a Security Agreement, a Seller's Affidavit, an Absolute Unconditional, and Irrevocable Transfer and Assignment, Wiring Instructions, and some other documents. [3] Stone Street offset $2,500 of its obligation to pay $132,844 because there was a delay in the closing and during that delay a $2,500 monthly payment was made directly to Johnson instead of to Stone Street. [4] The record does not state the exact amount that Johnson paid to complete the loan payments on his truck, it merely states that he paid $17,000 to $18,000. [5] The letter does not expressly state that Johnson is changing his address to 18351 Kuykendahl, No. 251, Spring, Texas XXXXX-XXXX. Instead, Johnson's letter uses this Spring, Texas address as his return address. However, in Integrity's First Petition in Interpleader, it states that Johnson requested that the payments be sent to the Spring, Texas address. The record also shows that Integrity did change the address to which the payments were sent after receiving notification from Equitable of Johnson's letter. [6] Based upon the terms of the structured settlement agreement, the monthly payments for March, April, May and June of 1999 would have been in the amount of $3,000.00 each. Because these four payments were diverted from Stone Street to Johnson, it appears that he received a total of $12,000.00. However, under the terms of the assignment Johnson was only entitled to receive $500.00 of each monthly payment, for a total of $2,000.00. [7] Stone Street argued the full faith and credit, and res judicata effect of the Maryland judgment in the trial court. However, the trial court did not rule on that basis and it is not brought forward as an issue on appeal. [8] Under the terms of the settlement agreement, Integrity recovered attorneys' fees from a portion of the monthly payments held in the registry of the court and was discharged from the lawsuit in exchange for its agreement to honor and comply with any judgment rendered in the case. On August 12, 2002, the trial court signed an Agreed Order of Dismissal with Prejudice dismissing Integrity from the case and awarding it $6,000 in attorneys' fees. [9] Johnson cites to CGU Life Insurance Co. of America v. Metropolitan Mortg. & Securities Co., Inc., 131 F.Supp.2d 670 (E.D.Pa.2001), J.G. Wentworth v. Jones, 28 S.W.3d 309 (Ky.Ct.App.2000), Grieve v. General American Life Insurance Co., 58 F.Supp.2d 319 (D.Vt.1999), and J.G. Wentworth v. Callahan, 256 Wis.2d 807, 649 N.W.2d 694 (2002). [10] Structured Asset cites and analyzes In re Kaufman, 37 P.3d 845 (Okla.2001) along with some Texas case law. [11] Johnson analyzes Grieve, 58 F.Supp.2d 319 and Structured Asset analyzes Kaufman, 37 P.3d 845. [12] Structured Asset also argued that the assignment to Equitable constituted a novation of the Settlement Agreement, including its anti-assignment language. The trial court's Conclusions of Law also state that the execution of the Equitable Assignment constituted a novation of the 1986 Settlement Agreement. This court does not need to address this argument to determine that the trial court correctly held that the anti-assignment provision is unenforceable in this case. [13] We note that the Texas Structured Settlement Act, Tex. Civ. Prac. Rem.Code Tex. Civ. Prac. & Rem.Code Ann. § 141.001-007 (Vernon Supp.2004-05), does not apply here because it was enacted after the date of the assignment. [14] As previously noted, Texas has enacted the Structured Settlement Protection Act, Tex. Civ. Prac. Rem.Code Ann. § 141.001-007 (Vernon Supp.2004-05). [15] See Act of Jan. 23, 2002, P.L. 107-134, § 115(c)(2), 115 Stat. 2436-39, 2438 (2001). [16] 26 U.S.C.A. § 5891 (West 2003). [17] See Tex. Civ. Prac. Rem.Code Ann. § 141.001-007 (Vernon Supp.2004-05); Alaska Stat. §§ 09.60.200 to 09.60.230 (Michie Supp.2003); Ariz.Rev.Stat. Ann. § 12-2901 to -2904 (West 2003); Cal. Ins.Code §§ 10134-20239.5 (West Supp.2004); Colo.Rev.Stat. Ann. §§ 13-23-101 to XX-XX-XXX (West Supp.2003); Conn. Gen.Stat. Ann. § 52-225f (West 2003); Del.Code Ann. tit. 10, §§ 6601-6604 (Supp.2002); Fla. Stat. Ann. § 626.99296 (West 2004); Ga.Code Ann. §§ 51-12-70 to -77 (Harrison Supp.2002); Idaho Code § 28-9-109 (Michie Supp.2004); 215 Ill. Comp. Stat. Ann. 153/1-153/35 (West Supp.2004); Ind.Code Ann. §§ 34-50-2-1 to -2-11 (Michie Supp.2004); Iowa Code Ann. §§ 682.1-682.7 (West Supp.2004); Ky.Rev.Stat. Ann. §§ 454.430, 454.431, 454.435 (Michie 1999); La.Rev.Stat. Ann. § 9:2715 (West Supp.2004); Me.Rev.Stat. Ann. §§ 2241-46 (West 2000); Md.Code Ann., Cts. & Jud. Proc. §§ 5-1101 to -1105 (2002); Mass. Gen. Laws Ann. ch.231C §§ 1-5 (Law.Co-op.Supp.2003); Mich. Comp. Laws Ann. §§ 691.1191 to 691.1197 (West Supp.2004); Minn.Stat. Ann. §§ 549.30 to 549.34 (West 2000 and Supp.2004); Miss.Code Ann. §§ 11-57-1 to 11-57-15 (Supp.2003); Mo. Ann. Stat. §§ 407.1060 to 407.1068 (West 2001); Neb.Rev.Stat. Ann. §§ 25-3101 to 25-3107 (Michie Supp.2002); Nev.Rev.Stat. Ann. 42.030 (Michie Supp.2003); N.J. Stat. Ann. §§ 2A:16-63 to 2A:16-69 (West Supp.2004); N.Y. Gen. Oblig. Law §§ 5-1701 to 5-1709 (McKinney Supp.2004); N.C. Gen.Stat. Ann. §§ 1-543.10 to 1-543.15 (2003); Ohio Rev.Code Ann. §§ 2323.58 to 2323.587 (Anderson 2001 and Supp.2003); Okla. Stat. Ann. tit. 12, §§ 3238-3245 (West Supp.2004); 40 Pa. Cons.Stat. Ann. §§ 4001-4009 (West Supp.2004); R.I. Gen Laws §§ 27-9.3-1 to 27-9.3-7 (2002); @S.C.Code Ann. §§ 15-50-10 to 15-50-70 (Law Co-op. Supp.2003); S.D. Codified Laws §§ 21-3B-1 to 27-3B-12 (Michie 2004); Tenn.Code Ann. §§ 47-18-2601 to XX-XX-XXXX (2001); Utah Code Ann. §§ 78-59-101 to XX-XX-XXX (2002); Va.Code Ann. §§ 59.1-475 to 59.1-477.1 (Michie 2001); Wash. Rev.Code Ann. §§ 19.205.010 to 19.205.900 (West Supp.2004); W.Va.Code Ann. §§ 46A-6H-1 to 46A-6H-8 (Michie 1999); see also In re Chorney, 277 B.R. 477, 490 (Bankr.W.D.N.Y.2002)(a number of states have enacted legislation which would allow recipients of structured settlement payments to obtain loans against all or a portion of the payments not yet due when the reasons for the loan and terms of the loan are approved by a court); In re Granati, 270 B.R. at 589 (commenting in a 2001 opinion that twelve states have enacted statutes regulating the transfer of structured settlement payments).

193 P.3d 84 (2008) 222 Or. App. 96 STATE v. RICHARDSON-GRZYCH. NO. A131113. Court of Appeals of Oregon. August 20, 2008. Affirmed without opinion.

138 Pa. Commonwealth Ct. 475 (1991) 588 A.2d 584 CAPITAL CITY LODGE NO. 12, FRATERNAL ORDER OF POLICE, Appellant, v. The CITY OF HARRISBURG and The Civil Service Board, Appellees. Commonwealth Court of Pennsylvania. Argued October 31, 1990. Decided March 19, 1991. Petition for Allowance of Appeal Denied August 26, 1991. *477 Anthony C. Busillo, II, Law Firm of Gary M. Lightman, Harrisburg, for appellant. Bradley C. Bechtel, City Solicitor, Harrisburg, for appellees. Before CRAIG, President Judge, and DOYLE, PALLADINO, McGINLEY, PELLEGRINI, KELLEY and BYER, JJ. PELLEGRINI, Judge. Capital City Lodge No. 12, Fraternal Order of Police (FOP) appeals from an order of the Court of Common Pleas, Dauphin County, which denied the FOP's Motion for Peremptory Judgment in Mandamus and sustained the City of Harrisburg's (City) and the Civil Service Board's (Board) preliminary objections. On November 16, 1981, the Pennsylvania Human Relations Commission (PHRC) filed a complaint against the City, alleging that the City, in its employment practices within the police department, was engaged in patterns or practices which discriminated on the basis of race and sex with respect to tenure, terms, condition and privilege of employment in violation of Sections 5(a), (d) and (e) of the Pennsylvania Human Relations Act (Act), Act of October 27, 1955, P.L. 744, as amended, 43 P.S. § 955(a), (d) and (e). To avoid litigation, the City entered into a Conciliation Agreement (Agreement) with the PHRC on October 29, 1984.[1]*478 Under the terms of settlement in the Agreement, the City agreed that its goal was to have a police force that was racially and ethnically representative of the population it served, as well as reflective of the sexual composition of the community it served.[2] No specific method by which the City was to achieve this goal was set forth in the Agreement. Such compliance was left up to the City to achieve. In an effort to comply with the goals of the Agreement, the City adopted a "dual list" procedure to fill open positions. The way this procedure operated was to rank and place the names of all minority and female officers who qualified on a minority list, and to rank and place the names of all majority officers who qualified on a separate majority list. Whenever a vacancy occurred for a particular rank, the Chief of Police would present three names to the Mayor, alternating from each of the eligibility lists. If a vacancy was filled by an officer whose name was on the majority list, the next vacancy would be filled by an officer whose name was on the minority list. As a result of the Board's certification of two eligibility lists for promotions to the positions of Corporal and Lieutenant, and the posting of these two lists on August 2, 1989, the FOP filed with the trial court a Complaint In Mandamus *479 And For Declaratory Relief. The Complaint alleged that the use of a single list was mandated pursuant to Section 4406 of The Third Class City Code,[3] and requested the court to declare the promotional lists certified by the Board illegal and invalid. The City filed Preliminary Objections in the Nature of a Demurrer, alleging that the FOP had not stated a cause of action, because the FOP had not shown a clear right to relief, had other adequate remedies at law, and had not joined all other interested parties. The FOP then filed a Motion for Peremptory Judgment in Mandamus, which incorporated the Complaint In Mandamus And For Declaratory Relief. The trial court denied the FOP's Motion for Peremptory Judgment in Mandamus and sustained the City's Preliminary Objections, finding that a mandamus was to be granted only when there was no other remedy at law.[4] Because the current collective bargaining agreement contained a provision regarding promotions subject to grievances, and the FOP could have filed a complaint with the Pennsylvania Labor Relations Board (PLRB), there were other remedies available to the FOP. The FOP then filed the present appeal based on the trial court's order.[5] The issues now before us are whether the trial court erred in sustaining the City's Preliminary Objections based on its conclusion that there were other remedies available to the FOP for addressing the City's usage of a dual list system, and if so, whether the use of a dual list system *480 violates Section 4406 of The Third Class City Code.[6] When considering preliminary objections in the nature of a demurrer, we accept as true all well-pleaded material facts in the complaint as well as all reasonable inferences that may be drawn from those facts. Stein v. Richardson, 302 Pa.Superior Ct. 124, 448 A.2d 558 (1982). Preliminary objections should be sustained and a complaint dismissed only in cases that are clear and free from doubt that the law will not permit recovery by the plaintiff. Donnelly v. DeBourke, 280 Pa.Superior Ct. 486, 421 A.2d 826 (1980). The FOP contends that the trial court erred in sustaining the City's Preliminary Objections because the FOP was clearly entitled to relief since there were no other remedies available to address the issue of whether the dual list system was an appropriate means of determining which officers would be promoted. Specifically, the FOP argues that the grievance procedure under the collective bargaining agreement was not available as a remedy, because an arbitrator would have been limited to interpreting the terms of the agreement and would have had no authority to determine whether the rules and regulations regarding promotions were lawful. We disagree. Article XXI of the collective bargaining agreement provides the following regarding promotions: *481 All promotions in the Police Bureau will be made from within the ranks of the paid members of the Police Bureau and shall be made by competitive examinations administered by the appropriate Civil Service Board, and the regulations of the Civil Service Board shall be established and copies made available to all members of the Police Bureau indicating the basis upon which eligibility is to be determined. Article XX, Section 1 of the collective bargaining agreement provides that any dispute arising out of the interpretation of the contract shall be subject to arbitration: Any disputes arising under this Agreement relating to interpretations or applications of the terms and conditions of this Agreement shall be subject to arbitration in accordance with the arbitration provisions of this Agreement, and any award pursuant to any such arbitration shall be final and binding upon the City and the FOP, and shall not be subject to appeal or review. (Emphasis added.) Because Article XXI refers to all promotions made by the Police Bureau, any concerns regarding the newly implemented dual list promotional system, including whether it is legally permissible, would be an appropriate dispute for grievance or arbitration and interpretation pursuant to Articles XXI and XX of the collective bargaining agreement.[7] The applicability of arbitration is further warranted by Section 903 of the Public Employe Relations Act, Act of July 23, 1970, P.L. 563, 43 P.S. § 1101.903, which provides that arbitration of disputes or grievances arising out of the *482 interpretation of the provisions of a collective bargaining agreement is mandatory. Therefore, the FOP's concern regarding the dual list system could be interpreted under the collective bargaining agreement, because filing a grievance or arbitrating the matter would be mandatory. The trial court also found that the FOP had an additional remedy for determining the validity of the dual list system by filing a complaint with the PLRB. However, the FOP argues that such a remedy was not available. The FOP contends that the PLRB has no authority to rule on the legality of civil service procedures, to interpret the state civil service laws or to rule on issues involving the interpretation of the Human Relations Act. Again, we disagree. The Pennsylvania Labor Relations Act provides two avenues for the determination of the FOP's dispute or to aid in resolution of that dispute. First, pursuant to Section 8(a) of the Pennsylvania Labor Relations Act (Act), Act of June 1, 1937, P.L. 1168, as amended, 43 P.S. § 211.8(a), the PLRB is empowered to prevent any person from engaging in any unfair labor practice listed in Section 6 of the Act, 43 P.S. § 211.6. Under Section 6(1)(c) of the Act, it is an unfair labor practice to discriminate with regard to promotion. Therefore, the PLRB would be empowered to determine whether the dual list system was discriminating against majority officers. Second, pursuant to Section 2 of the Act of June 24, 1968 (commonly referred to as Act 111), P.L. 237, 43 P.S. § 217.2, it is the duty of public employers and their policemen and firemen employees to exert every reasonable effort to settle all disputes by engaging in collective bargaining in good faith and by entering into settlements by way of written agreements and maintaining the same. Because the Pennsylvania Labor Relations Act is to be read in pari materia with Act 111,[8] the PLRB would have jurisdiction over the FOP's dispute regarding the dual list system of promotions if bargaining was required regarding *483 the usage of the dual list system and the City, as the employer, refused to bargain. Because the FOP failed to grieve its complaint pursuant to the collective bargaining agreement or file a complaint against the City with the PLRB for unfair labor practices, we find that the trial court properly determined that the FOP had not utilized all of its remedies at law to resolve the issue of whether the dual list system was a permissible method for promoting officers. Accordingly, because the FOP did not establish that it was clearly entitled to relief, the trial court's order sustaining of the City's Preliminary Objections is affirmed.[9] ORDER AND NOW, this 19th day of March, 1991, the order of the Court of Common Pleas of Dauphin County, dated April 10, 1990, is affirmed, and the FOP's appeal from the trial court's denial of its Motion for Peremptory Judgment in Mandamus is quashed. NOTES [1] The Conciliation Agreement states in pertinent part: WHEREAS, Respondent enters into this Agreement in order to avoid the expense, disruption and time involved in litigation; and WHEREAS, the Commission finds that the Settlement Terms, as set forth in Appendix "B" hereto, are reasonable under the circumstances and finds further that the public interest will be served by settlement of the case. [2] Section III of the Terms of Settlement provides the following: A) The Respondent's ultimate goal shall be to have a Police Force that is racially and ethnically representative of the population it serves. 1) The Respondent's goal shall be that at the termination of this Agreement, the representation of Blacks and Hispanics shall be, at minimum, 95% of their representation in the community served. B) The Respondent shall have, as a goal, employment of female Police Officers so that by the expiration of this Agreement, there will be a minimum of five (5) females on each of the three (3) platoons and two (2) female Detectives in both the Youth Aid Section and in the Criminal Investigation Section. 1) The Respondent's ultimate goal shall be a police force which reflects the sexual composition of the community it serves. C) The aforementioned goals are not intended, and should not be construed as strict, numerical quotas. They are designed to reflect the intent and good faith efforts of the Respondent to utilize minorities and females as are reasonably available for appointment as Police Officers and promotion in the Bureau. [3] Section 4406 of The Third Class City Code, Act of June 23, 1931, P.L. 932, as amended, 53 P.S. § 39406, provides in pertinent part that the Board shall make and keep, in numerical order, a list containing the names of all applicants for civil service positions in said city who may pass the required mental and physical examinations. [4] Accordingly, the request for declaratory relief was also denied because, pursuant to Section 7541(c) of the Declaratory Judgments Act, 42 Pa. C.S. § 7541(c), such relief may only be granted when there is no alternative remedy available to the plaintiff. [5] An order denying a motion for peremptory judgment is an interlocutory order and is not appealable as a matter of right. We will therefore quash the appeal to the extent that it seeks to appeal that portion of the trial court's order denying the motion for peremptory judgment. [6] The City argues that the FOP's complaint should be dismissed because the Human Relations Commission, as an interested party in the outcome of this matter, was an indispensable party to this litigation and was not joined as required pursuant to Section 7540(a) of the Declaratory Judgments Act, 42 Pa.C.S. § 7540(a). However, under the Conciliation Agreement, the Human Relations Commission and the City only agreed that the City was to eliminate discrimination of minorities in its promotional policies. They did not agree upon any specific method which the City was to use to accomplish this goal. Because the City was permitted to implement the system of its choice to eliminate discrimination, the implementation of another system in place of the dual list system to accomplish the same goal would not require the Human Relations Commission's approval and would not affect the Conciliation Agreement. Therefore, the Human Relations Commission would not be affected by a change in systems and would not be an indispensable party. [7] Section 7302(a) of the Uniform Arbitration Act, 42 Pa.C.S. § 7302(a), provides that an agreement to arbitrate a controversy on a nonjudicial basis shall be conclusively presumed to be an agreement to arbitrate pursuant to Subchapter B (relating to common law arbitration) unless the agreement to arbitrate is in writing and expressly provides for arbitration pursuant to this subchapter (relating to statutory arbitration) or any other similar statute, in which case the arbitration shall be governed by this subchapter. In common law arbitration, the arbitrator is the final judge of both law and fact. Elkins & Co. v. Suplee, 371 Pa.Superior Ct. 570, 538 A.2d 883 (1988). Therefore, an arbitrator would be permitted to hear a complaint regarding the validity of a dual list system such as the one presented by the FOP. [8] See Philadelphia Fire Officers Association v. Pennsylvania Labor Relations Board, 470 Pa. 550, 369 A.2d 259 (1977), which provides the Pennsylvania Labor Relations Act is to be read in pari materia with Act 111. [9] Because we determine that the FOP had other remedies available for determining the validity of the dual list system, we do not need to address the issue of whether the dual list system is invalidated by The Third Class City Code.

125 Ill.2d 267 (1988) 531 N.E.2d 355 LINDSAY STALLMAN, Appellee, v. CLARENCE YOUNGQUIST et al. (Bari Stallman, Appellant). No. 64957. Supreme Court of Illinois. Opinion filed November 21, 1988. Williams & Montgomery, Ltd., of Chicago (Barry L. Kroll, Timothy V. Hoffman, John D. Daniels, Lloyd E. Williams, Jr., and Mark A. Miller, of counsel), for appellant. *268 George B. Collins and Christopher Bargione, of Collins & Bertelle, of Chicago, for appellee. Shaun McParland, of Tressler, Soderstrom, Maloney & Priess, of Chicago, for amicus curiae Illinois Association of Defense Trial Counsel. Appellate court reversed; circuit court affirmed; cause remanded. JUSTICE CUNNINGHAM delivered the opinion of the court: Plaintiff, Lindsay Stallman, brought suit by her father and next friend, Mark Stallman, against defendant Bari Stallman and codefendant Clarence Youngquist (not a party to this appeal) for prenatal injuries allegedly sustained by plaintiff during an automobile collision between Bari Stallman's automobile and the automobile driven by Clarence Youngquist. Defendant Bari Stallman is the mother of plaintiff. Defendant was approximately five months pregnant with plaintiff and was on her way to a restaurant when the collision occurred. This case has been before the circuit court of Cook County twice, and also twice before the appellate court, in Stallman I (129 Ill. App.3d 859) and Stallman II (152 Ill. App.3d 683). The Stallman II court reversed the circuit court, which had granted defendant's motion for summary judgment. Defendant filed a petition for leave to appeal from the decision in Stallman II pursuant to Supreme Court Rule 315 (107 Ill.2d R. 315), which was granted. There are two issues on appeal: the status of the parental immunity doctrine in Illinois and the tort liability of mothers to their children for the unintentional infliction of prenatal injuries. For the reasons developed below, this court does not recognize a cause of action brought by or on behalf of a fetus, subsequently born alive, against its mother for the unintentional infliction of prenatal injuries. This decision requires us to hold that the circuit court was correct when it granted *269 defendant's motion for summary judgment. Therefore, it is unnecessary for this court to reach the issue concerning the status of the parental immunity doctrine. CASE BACKGROUND Plaintiff brought a three-count complaint in the circuit court of Cook County. Counts I and III are not involved in this appeal and are presently pending in the circuit court. Count II of plaintiff's second amended complaint, the subject matter of this appeal, charged defendant with negligence, the direct and proximate result of which caused the fetus (the unborn plaintiff) to be thrown about in the womb of her mother (defendant) resulting in serious and permanent injury to plaintiff. Defendant's motion to dismiss was granted in the circuit court. Plaintiff appealed this decision to the appellate court in Stallman I. Defendant argued to the Stallman I court that no Illinois court had ever considered the question whether a mother could, on any grounds, be sued by her subsequently born child for injuries sustained as a result of the mother's acts or omissions during pregnancy. In response to defendant's argument that public policy considerations militate against imposing civil liability through the tort damages system on women who become mothers, the Stallman I court expressed that in its "opinion, the right of the child to be compensated for her injuries is not outweighed by considerations of public policy." (129 Ill. App.3d at 865.) The Stallman I court then stated that it did "agree with plaintiff * * * that the parent-child tort immunity doctrine should not be applied to this case so as to defeat plaintiff's cause of action for negligence against her mother" (129 Ill. App.3d at 862), and that "[i]n our opinion, plaintiff should be given the opportunity to prove whether defendant Stallman's act of driving to a restaurant was not an act arising out of the family *270 relationship and directly connected with family purposes and objectives" (129 Ill. App.3d at 864). On remand, the circuit court granted the defendant's motion for summary judgment. Plaintiff appealed this decision to the appellate court. Defendant argued that stare decisis and the doctrine of the law of the case precluded the Stallman II court from reconsidering the issue of parental immunity, which was decided by the Stallman I court. The Stallman II court rejected defendant's argument and proceeded to reevaluate and then partially abrogate the parental immunity doctrine. The Stallman II court noted that in Illinois an infant who is born alive and survives may bring a tort action to recover damages for prenatal injuries resulting from another's negligence. The court then simply stated that its holding "simply allows plaintiff to litigate count II of her complaint, naming her mother as a defendant." (152 Ill. App.3d at 694.) The Stallman II court cited a Michigan court of appeals case which held, "a child's mother bears the same liability for negligent conduct, resulting in prenatal injuries, as would a third person. Grodin v. Grodin (1981), 102 Mich. App. 396, 301 N.W.2d 869." 152 Ill. App.3d at 694. The Stallman II court reversed the order of the circuit court granting the summary judgment and remanded the cause to permit the parties to proceed to trial on the merits. Defendant petitioned for leave to appeal to this court pursuant to Supreme Court Rule 315 (107 Ill.2d R. 315). We granted this appeal. Neither the Stallman I court nor the Stallman II court adequately addressed the preliminary issue whether a cause of action by or on behalf of a fetus, subsequently born alive, may be asserted against its mother for the unintentional infliction of prenatal injuries. This court holds that such a cause of action shall not be recognized. *271 This holding makes unnecessary the consideration of the issue of the parental immunity doctrine. Accordingly, we do not consider defendant's arguments concerning stare decisis and the doctrine of the law of the case, both of which were directed to the Stallman II court's decision on the parental immunity doctrine. Insofar as Stallman I and Stallman II purport to effect a change in the status of the parental immunity doctrine as it existed before the appeal to the Stallman I court, the judgments are vacated. PRENATAL NEGLIGENCE The issue whether a cause of action exists by or on behalf of a fetus, subsequently born alive, against its mother for the unintentional infliction of prenatal injuries is an issue of first impression in this court. We begin with a review of the area of tort liability for prenatal negligence as it has developed in regards to third persons. It was not until 1884, in Dietrich v. Northampton (1884), 138 Mass. 14, that such a case came before a court in the United States alleging a cause of action for prenatal injuries. In Dietrich, Judge Oliver Wendell Holmes held that the common law did not recognize a cause of action in tort for prenatal injuries to a fetus. Judge Holmes denied that such an action may lie primarily because the fetus "was a part of the mother at the time of the injury, [and] any damage to it which was not too remote to be recovered for at all was recoverable by her." (138 Mass. at 17.) After Dietrich and until 1946, all courts in the United States which considered the question agreed: no action would lie for injuries sustained by a fetus which became apparent on its birth. This court was one of the first to consider the question of the liability of third persons for prenatal negligence after the Dietrich case. In Allaire v. St. Luke's Hospital (1900), 184 Ill. 359, it was held that no action would lie *272 for injuries to a fetus, only days away from birth, due to the negligence of the defendant hospital where the mother of the plaintiff was a patient awaiting the delivery of the plaintiff. In Allaire, this court affirmed the opinion of the appellate court, which had stated, "`That a child before birth is, in fact, a part of the mother and is only severed from her at birth, cannot, we think, be successfully disputed.'" (184 Ill. at 368.) This court adopted the reasoning of the appellate court that the plaintiff, at the time of the injury, did not have a distinct and independent existence from his mother; the injury was to the mother and not to the plaintiff. 184 Ill. at 365. Allaire is primarily remembered today for the dissent of Mr. Justice Boggs, who asked the question: "Should compensation for his injuries be denied on a mere theory, known to be false, that the injury was not to his [or her] person but to the person of the mother?" 184 Ill. at 374 (Boggs, J., dissenting). The rule recognizing the right to bring an action for injuries inflicted on a fetus by a person not its mother is as pervasive and established now as was the contrary rule before 1946. This court overruled Allaire in Amann v. Faidy (1953), 415 Ill. 422, and recognized a cause of action under the wrongful death statute for the death of an infant who, while in a viable condition, sustained a prenatal injury due to the negligence of a third person. Later, in Rodriguez v. Patti (1953), 415 Ill. 496, this court recognized a common law right of action for personal injuries to an infant, a viable fetus, when wrongfully injured due to the negligence of third persons. Much later, in Chrisafogeorgis v. Brandenberg (1973), 55 Ill.2d 368, this court held that a wrongful death action could be maintained on behalf of a stillborn child who sustained injuries due to the negligence of third persons while a viable fetus. *273 The early reliance by courts on viability as a point at which with certainty it could be said that the fetus and the woman who is the mother of the fetus are two separate entities proved to be troublesome. Most courts have since abandoned viability as a requirement for a child to bring an action for prenatal injuries inflicted by third persons. (See 40 A.L.R.3d 1222 (1971).) In Sana v. Brown (1962), 35 Ill. App.2d 425, and Daley v. Meier (1961), 33 Ill. App.2d 218, our appellate court considered whether a surviving infant had a right of action for injuries sustained while in its mother's womb during a previable state of development and answered in the affirmative. In Renslow v. Mennonite Hospital (1977), 67 Ill.2d 348, this court rejected viability as a requirement in a cause of action for prenatal injuries suffered by a fetus due to the negligence of third persons. According to the plurality, Renslow involved the issue of whether "a child, not conceived at the time negligent acts were committed against its mother, [has] a cause of action against the tortfeasors for its injuries resulting from their conduct." (67 Ill.2d at 349.) The plaintiff in Renslow was born jaundiced and suffering from hyperbilirubinemia and required an immediate, complete exchange transfusion of her blood, as well as another such transfusion shortly thereafter. The plaintiff also allegedly suffered permanent damage to various organs, her brain, and her nervous system. This had occurred because eight years before the plaintiff's birth, the defendants (a hospital and a doctor) on two occasions transfused the plaintiff's mother with Rh-positive blood. The plaintiff's mother had Rh-negative blood, which was incompatible with and was therefore sensitized by the Rh-positive blood. The appellate court, "in a careful and well-reasoned opinion, emphasized that the defendants were a doctor and a hospital, and held that there was no showing `that the defendants could not reasonably have foreseen that *274 the teenage girl would later marry and bear a child and that the child would be injured as the result of the improper blood transfusion.' (40 Ill. App.3d 234, 239.)" Renslow, 67 Ill.2d at 350. The above case law has grown out of circumstances in which the defendant was a third person and not the mother of the plaintiff. Plaintiff in the instant case asserts that she should be able to bring a cause of action for prenatal injuries against her mother just as she would be able to bring a cause of action for prenatal injuries against a third person. The Stallman II court noted that the Michigan court of appeals, in Grodin v. Grodin (1980), 102 Mich. App. 396, 301 N.W.2d 869, held that a child's mother bears the same liability for negligent conduct which results in prenatal injury as would a third person. (102 Mich. App. at 400, 301 N.W.2d at 870.) In Grodin, a child brought suit against his mother for prenatal negligence. The plaintiff in Grodin had developed brown and discolored teeth because the defendant mother had taken tetracycline during the time when she was pregnant with the plaintiff. The suit alleged failure on the part of the mother to request from a doctor a pregnancy test, failure to seek proper prenatal care, and failure to report to a doctor that the mother was taking tetracycline. The Grodin court failed to understand that the question of the application of Michigan's partial abrogation of the parental immunity doctrine was a separate question from that of recognizing a cause of action by a fetus, subsequently born alive, against its mother for the unintentional infliction of prenatal injuries. The Grodin court would have the law treat a pregnant woman as a stranger to her developing fetus for purposes of tort liability. The Grodin court failed to address any of the profound implications which would result from such a legal fiction and is, for that reason, unpersuasive. We note also that *275 the Grodin court's decision regarding the application of the partial abrogation of the parental immunity doctrine has been called incorrect. Mayberry v. Pryor (1984), 134 Mich. App. 826, 832-33, 352 N.W.2d 322, 324-25. This court has never been asked to decide if, by becoming pregnant, a woman exposes herself to a future lawsuit by or on behalf of the fetus which will become her child. At one time a fetus was seen as only a part of the woman who was the mother of the child. When someone tortiously injured a pregnant woman and her fetus sustained injury as a result, no legal protection would have been extended to the subsequently born child. Today, when the tortious acts of another towards a woman who is or may become pregnant harms a fetus, there is a legally cognizable cause of action for the injury to both the woman and the subsequently born child. Renslow v. Mennonite Hospital (1977), 67 Ill.2d 348. In the path which some courts have taken on the road which has recognized recovery for a child for injuries inflicted on it as a fetus, there has been an articulation of a "legal right to begin life with a sound mind and body." (See Evans v. Olson (Okla. 1976), 550 P.2d 924, 927; Womack v. Buchhorn (1971), 384 Mich. 718, 725, 187 N.W.2d 218, 222; Smith v. Brennan (1960), 31 N.J. 353, 364-65, 157 A.2d 497, 503.) The articulation of this right to recover against third-person tortfeasors has served to emphasize that it is not just the pregnant woman alone who may be harmed by the tortious act of another but also the fetus, whose injuries become apparent at its birth. It is clear that the recognition of a legal right to begin life with a sound mind and body on the part of a fetus which is assertable after birth against its mother would have serious ramifications for all women and their families, and for the way in which society views women and women's reproductive abilities. The recognition of such a right by a fetus would necessitate the recognition *276 of a legal duty on the part of the woman who is the mother; a legal duty, as opposed to a moral duty, to effectuate the best prenatal environment possible. The recognition of such a legal duty would create a new tort: a cause of action assertable by a fetus, subsequently born alive, against its mother for the unintentional infliction of prenatal injuries. It is the firmly held belief of some that a woman should subordinate her right to control her life when she decides to become pregnant or does become pregnant: anything which might possibly harm the developing fetus should be prohibited and all things which might positively affect the developing fetus should be mandated under penalty of law, be it criminal or civil. Since anything which a pregnant woman does or does not do may have an impact, either positive or negative, on her developing fetus, any act or omission on her part could render her liable to her subsequently born child. While such a view is consistent with the recognition of a fetus' having rights which are superior to those of its mother, such is not and cannot be the law of this State. A legal right of a fetus to begin life with a sound mind and body assertable against a mother would make a pregnant woman the guarantor of the mind and body of her child at birth. A legal duty to guarantee the mental and physical health of another has never before been recognized in law. Any action which negatively impacted on fetal development would be a breach of the pregnant woman's duty to her developing fetus. Mother and child would be legal adversaries from the moment of conception until birth. The error that a fetus cannot be harmed in a legally cognizable way when the woman who is its mother is injured has been corrected; the law will no longer treat the fetus as only a part of its mother. The law will not now make an error of a different sort, one with enormous implications *277 for all women who have been, are, may be, or might become pregnant: the law will not treat a fetus as an entity which is entirely separate from its mother. In Renslow v. Mennonite Hospital (1977), 67 Ill.2d 348, the plurality reaffirmed the "utility of the concept of duty as a means by which to direct and control the course of the common law," and went on to say that "there is a right to be born free from prenatal injuries foreseeably caused by a breach of duty to the child's mother" (67 Ill.2d at 357). It is foreseeable that any act or omission by a pregnant woman could impact on fetal development. The plurality in Renslow quoted with approval Dean Leon Green's observation: "`"`[H]owever valuable the foreseeability formula may be in aiding a jury or judge to reach a decision on the negligence issue, it is altogether inadequate for use by the judge as a basis of determining the duty issue and its scope. The duty issue, being one of law, is broad in its implication; the negligence issue is confined to the particular case and has no implications for other cases. There are many factors other than foreseeability that may condition a judge's imposing or not imposing a duty in the particular case * * *.' Green, Foreseeability in Negligence Law, 61 Colum. L. Rev. 1401, 1417-18."' (56 Ill.2d 372, 375.)" (67 Ill.2d at 354.) It is also clear that causation alone cannot result in the recognition of duty because "in a very real sense the consequences of an act go forward to eternity, and back to the beginning of the world. Any attempt to impose responsibility on such a basis would result in infinite liability for all wrongful acts, which would `set society on edge and fill the courts with endless litigation.'" Prosser, Palsgraf Revisited, 52 Mich. L. Rev. 1, 24 (1953). If a legally cognizable duty on the part of mothers were recognized, then a judicially defined standard of conduct would have to be met. It must be asked, By what judicially defined standard would a mother have *278 her every act or omission while pregnant subjected to State scrutiny? By what objective standard could a jury be guided in determining whether a pregnant woman did all that was necessary in order not to breach a legal duty to not interfere with her fetus' separate and independent right to be born whole? In what way would prejudicial and stereotypical beliefs about the reproductive abilities of women be kept from interfering with a jury's determination of whether a particular woman was negligent at any point during her pregnancy? Holding a third person liable for prenatal injuries furthers the interests of both the mother and the subsequently born child and does not interfere with the defendant's right to control his or her own life. Holding a mother liable for the unintentional infliction of prenatal injuries subjects to State scrutiny all the decisions a woman must make in attempting to carry a pregnancy to term, and infringes on her right to privacy and bodily autonomy. This court has said that "the judiciary will * * * exercise its traditional role of drawing rational distinctions, consonant with current perceptions of justice, between harms which are compensable and those which are not." (Renslow v. Mennonite Hospital, 67 Ill.2d at 358.) Logic does not demand that a pregnant woman be treated in a court of law as a stranger to her developing fetus. It would be a legal fiction to treat the fetus as a separate legal person with rights hostile to and assertable against its mother. The relationship between a pregnant woman and her fetus is unlike the relationship between any other plaintiff and defendant. No other plaintiff depends exclusively on any other defendant for everything necessary for life itself. No other defendant must go through biological changes of the most profound type, possibly at the risk of her own life, in order to bring forth an adversary into the world. It is, after all, the whole life of the pregnant woman which impacts on the development *279 of the fetus. As opposed to the third-party defendant, it is the mother's every waking and sleeping moment which, for better or worse, shapes the prenatal environment which forms the world for the developing fetus. That this is so is not a pregnant woman's fault: it is a fact of life. In practice, the reproduction of our species is necessarily carried out by individual women who become pregnant. No one lives but that he or she was at one time a fetus in the womb of its mother. Pregnancy does not come only to those women who have within their means all that is necessary to effectuate the best possible prenatal environment: any female of child-bearing age may become pregnant. Within this pool of potential defendants are representatives of all socio-economic backgrounds: the well-educated and the ignorant; the rich and the poor; those women who have access to good health care and good prenatal care and those who, for an infinite number of reasons, have not had access to any health care services. The circumstances in which each individual woman brings forth life are as varied as the circumstances of each woman's life. Whether a standard of care to which a woman would be held while pregnant should vary according to whether a pregnancy was planned or unplanned, to whether a woman knew she was pregnant soon after conception or only knew after several months, to whether she had the financial resources with which to access the best possible medical care available or was unable to get any prenatal care are all questions which deserve much thought and reflection. There are far-reaching issues of public policy inherent in the question whether to recognize a cause of action in tort for maternal prenatal negligence. Judicial scrutiny into the day-to-day lives of pregnant women would involve an unprecedented intrusion into the privacy and *280 autonomy of the citizens of this State. This court holds that if a legally cognizable duty on the part of pregnant women to their developing fetuses is to be recognized, the decision must come from the legislature only after thorough investigation, study and debate. In a different context, our appellate court stated, "Although the legal questions unfolded are new, the problem is not; the social conditions producing the problem have existed since the advent of man." (Zepeda v. Zepeda (1963), 41 Ill. App.2d 240, 262.) In holding that no cause of action will lie for maternal prenatal negligence, this court emphasizes that we in no way minimize the public policy favoring healthy newborns. Pregnant women need access to information about the risks inherent in everyday living on a developing fetus and need access to health care for themselves and their developing fetuses. It is, after all, to a pregnant woman's advantage to do all she can within her knowledge and power to bring a healthy child into this world. The way to effectuate the birth of healthy babies is not, however, through after-the-fact civil liability in tort for individual mothers, but rather through before-the-fact education of all women and families about prenatal development. A cause of action by a fetus against its mother for the unintentional infliction of prenatal injuries is denied. The cause is remanded to the circuit court of Cook County for proceedings consistent with this opinion. Appellate court reversed; circuit court affirmed; cause remanded. JUSTICE STAMOS took no part in the consideration or decision of this case.

Fourth Court of Appeals San Antonio, Texas January 5, 2017 No. 04-16-00834-CV IN THE INTEREST OF D.K.C.A.JR., A CHILD, From the 198th Judicial District Court, Kerr County, Texas Trial Court No. 15809B Honorable Cathy Morris, Judge Presiding ORDER This is an appeal from an order terminating parental rights. The court reporter has filed a notification of late reporter’s record, requesting an extension to January 9, 2017. We GRANT the extension and ORDER the court reporter to file the reporter’s record on January 9, 2017. No further extensions will be granted. _________________________________ Karen Angelini, Justice IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 5th day of January, 2017. ___________________________________ Keith E. Hottle Clerk of Court 

Filed 4/24/14 CERTIFIED FOR PARTIAL PUBLICATION* IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT THE PEOPLE, F067275 Plaintiff and Respondent, (Super. Ct. No. VCF037228-98) v. JOE WILLIE HAYNES, OPINION Defendant and Appellant. APPEAL from a judgment of the Superior Court of Tulare County. Ronn M. Couillard, Judge. Michael B. Sheltzer, Public Defender, Lisa Bertolino, Assistant Public Defender, Angela Marie Krueger, Deputy Public Defender, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kelly E. LeBel, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- * Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of part II. of the Discussion.  INTRODUCTION “On November 6, 2012, the voters approved Proposition 36, the Three Strikes Reform Act of 2012, which amended [Penal Code] sections 667 and 1170.12 and added [Penal Code] section 1170.126 (hereafter the Act [or Proposition 36]).[1] The Act changes the requirements for sentencing a third strike offender to an indeterminate term of 25 years to life imprisonment. Under the original version of the three strikes law a recidivist with two or more prior strikes who is convicted of any new felony is subject to an indeterminate life sentence. The Act diluted the three strikes law by reserving the life sentence for cases where the current crime is a serious or violent felony or the prosecution has pled and proved an enumerated disqualifying factor. In all other cases, the recidivist will be sentenced as a second strike offender. (§§ 667, 1170.12.) The Act also created a postconviction release proceeding whereby a prisoner who is serving an indeterminate life sentence imposed pursuant to the three strikes law for a crime that is not a serious or violent felony and who is not disqualified, may have his or her sentence recalled and be sentenced as a second strike offender unless the court determines that resentencing would pose an unreasonable risk of danger to public safety. (§ 1170.126.)” (People v. Yearwood (2013) 213 Cal.App.4th 161, 167-168.) Shortly after the Act went into effect, Joe Willie Haynes (defendant), an inmate serving a term of 25 years to life plus seven years following conviction of felonies that were not violent (as defined by § 667.5, subd. (c)) or serious (as defined by § 1192.7, subd. (c)), filed a motion seeking resentencing under the Act. The trial court determined defendant did not qualify (was ineligible) for resentencing and denied the motion. Defendant now appeals. In the published portion of this opinion, we hold that the trial court’s order is appealable. In the unpublished portion, we hold that an inmate serving an indeterminate 1 Further statutory references are to the Penal Code unless otherwise stated. 2. life term under the three strikes law may be found to have been “armed with a firearm” in the commission of his or her current offense(s), so as to be disqualified from resentencing under the Act, even if he or she did not carry the firearm on his or her person. Accordingly, we affirm. FACTS AND PROCEDURAL HISTORY On November 20, 1997, a parole search was conducted at the Visalia residence of defendant and Tammy Carter. As officers entered the apartment, defendant was walking out of one of the bedrooms.2 A search of the residence revealed, in the northeast bedroom, a pair of pants in which were a plastic bag containing 1.8 grams of cocaine base, a sandwich-type bag containing 3.4 grams of marijuana, and $500 cash.3 On top of the closet were $1,300 and some Zig-Zag cigarette papers. A loaded handgun was hidden in the box springs of the bed. There were five live rounds in the handgun, and a sixth round of the same type and brand was found in or on the nightstand on the south side of the bed. On the same nightstand were items in defendant’s name and what appeared to be his articles of property. Pay-and-owe sheets were located in the nightstand on the north side of the bed, and a magazine for a nine-millimeter handgun, containing live rounds, was also found in that nightstand. Cocaine residue was found on a counter in the kitchen, and there was a box of sandwich bags in one of the kitchen drawers. Defendant gave a statement in which he denied knowledge of the gun. He admitted the drugs were his, but maintained they were for his personal use, although he admitted having given some to a friend the night before. He also said the money was his and that he had saved it since he got out of prison in February of that year. He did not 2 The northeast bedroom was shared by the adults. The other bedroom “obviously” was a child’s or children’s bedroom. 3 No suspected narcotics were found in any clothing that appeared to belong to Carter. 3. explain how that was possible in light of his previous claim he had not worked since the 1980’s. Despite defendant’s statement, an officer who was an expert in narcotic transactions and possession for sale opined the drugs were possessed for sale. Defendant was subsequently charged with possession of cocaine base for sale while personally armed with a firearm and having suffered a prior narcotics conviction (§ 12022, subd. (c); Health & Saf. Code, §§ 11351.5, 11370.2, subd. (a); count 1), possession of marijuana for sale while armed with a handgun (§ 12022, subd. (a)(1); Health & Saf. Code, § 11359; count 2); allowing a place to be used for preparing or storing controlled substances (Health & Saf. Code, § 11366.5, subd. (a); count 3), and possession of a firearm by a felon (former § 12021, subd. (a)(1), see now § 29800, subd. (a); count 4). With respect to each count, it was alleged defendant had suffered three prior “strike” convictions (§ 1170.12, subd. (c)(2)(A)) and had served two prior prison terms (§ 667.5, subd. (b)). On April 15, 1998, defendant pled no contest, pursuant to People v. West (1970) 3 Cal.3d 595 (West), to all charges and special allegations. On June 22, 1998, he was sentenced to a total term of 25 years to life plus seven years in prison. On November 29, 2012, defendant moved for resentencing pursuant to Proposition 36. The People opposed the motion, asserting defendant’s no contest plea to a section 12022, subdivision (c) allegation in connection with his current offenses constituted pleading and proof of a disqualifying factor. Defendant argued: (1) The electorate would have understood being “armed with a firearm” (the pertinent disqualifying factor) to occur when a defendant was carrying a firearm while perpetrating a crime, not where, as in the present case, defendant was not in actual physical possession of the firearm; (2) An allegation under section 12022, subdivision (c) could be found where the defendant was in constructive, not actual, possession of a firearm; and (3) Since the firearm was not found on defendant’s person, and he entered a West plea and maintained his innocence while denying any knowledge of the gun, nothing in the 4. record constituted proof defendant was armed with a firearm within the meaning of Proposition 36. Accordingly, defendant claimed, he was qualified for resentencing. On April 2, 2013, a hearing was held on defendant’s motion. After argument concerning what constituted being “armed with a firearm” within the meaning of the Act, the trial court observed it had presided over the preliminary hearing for defendant’s current offenses, and was “well acquainted with the factual basis” for defendant’s West plea. Accordingly, it found nothing to warrant ignoring the section 12022, subdivision (c) admission. The court then agreed with the People that the language of the Act was “relatively clear” and “fit the scenario of the traditional findings of [section] 12022[, subdivision] (c) to which [defendant] entered the plea.” Accordingly, the court found defendant not qualified for resentencing and denied defendant’s motion. Defendant filed a timely notice of appeal from the court’s ruling. Because the question whether such a ruling is appealable is not settled, defendant also separately filed a petition for writ of mandate and/or habeas corpus (case No. F067318).4 4 The appealability issue is currently pending before the state Supreme Court. (E.g., People v. Leggett (2013) 219 Cal.App.4th 846, review granted Dec. 18, 2013, S214264 [concluding denial is not appealable if petition was erroneously filed by individual whose sentence is based on conviction for serious or violent felony, but is appealable in all other instances]; Teal v. Superior Court (2013) 217 Cal.App.4th 308, review granted July 31, 2013, S211708 [concluding denial is nonappealable because Act confers no substantial rights on eligibility issue]; People v. Hurtado (2013) 216 Cal.App.4th 941, review granted July 31, 2013, S212017 [concluding denial is appealable because Act confers a “substantial right”].) Because, as we shall explain, we conclude the ruling in issue is appealable, we will deny the writ petition by separate order. In so doing, we do not decide whether a denial of eligibility for resentencing could ever properly be challenged by a petition for writ of mandate or habeas corpus. 5.  DISCUSSION I. The trial court’s ruling is appealable. Both parties say the trial court’s denial of defendant’s motion is appealable. We agree. “‘It is settled that the right of appeal is statutory and that a judgment or order is not appealable unless expressly made so by statute.’ [Citations.]” (People v. Mazurette (2001) 24 Cal.4th 789, 792.) Section 1170.126 affords a procedure whereby inmates serving terms as third strike offenders can seek to be resentenced as second strike offenders, but it does not specifically authorize an appeal from the denial of a petition or motion for resentencing. However, section 1237 provides that a defendant may appeal “[f]rom a final judgment of conviction” (id., subd. (a)) or “[f]rom any order made after judgment, affecting the substantial rights of the party” (id., subd. (b)). There can be little doubt the trial court’s denial of defendant’s motion was an order made after judgment, since, in a criminal case, judgment is synonymous with the imposition of sentence. (Fadelli Concrete Pumping, Inc. v. Appellate Department (1995) 34 Cal.App.4th 1194, 1200.) Sentence was imposed for defendant’s current offenses in 1998. Although “‘an order ordinarily is not appealable when the appeal would merely bypass or duplicate appeal from the judgment itself[]’” (People v. Totari (2002) 28 Cal.4th 876, 882), an appeal from a trial court’s denial of a section 1170.126 petition or motion pertains only to that particular ruling, and so does not constitute an improper second appeal from the judgment. The question, then, is whether the trial court’s ruling affected defendant’s substantial rights. The trial court’s consideration of a petition under the Act is a two-step process. First, the court determines whether the petitioner is eligible for resentencing. If the petitioner is eligible, the court proceeds to the second step, and resentences the petitioner under the Act unless it determines that doing so would pose “an unreasonable risk of danger to public safety.” (§ 1170.126, subd. (f).) 6.  Here, we are concerned with the first step of the process — the initial eligibility determination. Section 1170.126 grants the trial court the power to determine an inmate serving an indeterminate life term as a third strike offender is eligible for resentencing as a second strike offender only if, as an initial matter, the inmate satisfies the three criteria set out in subdivision (e) of the statute. Those criteria are: (1) The inmate is serving an indeterminate term of life imprisonment imposed under the three strikes law for a conviction of a felony or felonies that are not defined as serious and/or violent under section 667.5, subdivision (c) or section 1192.7, subdivision (c); (2) The inmate’s current sentence was not imposed for a controlled substance offense with a specified weight enhancement, an enumerated sex offense, or an offense during the commission of which “the defendant used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person”; and (3) The inmate has no prior convictions for certain specified offenses. (§ 1170.126, subd. (e); see §§ 667, subd. (e)(2)(C), 1170.12, subd. (c)(2)(C).) If the inmate does not satisfy one or more of the criteria, section 1170.126 grants the trial court no power to do anything but deny the request for resentencing. Although a trial court’s ruling at the first step of the process does not change an inmate’s sentence, we nevertheless believe it affects the inmate’s substantial rights. An initial eligibility determination affects whether the trial court will exercise resentencing discretion. This is not an idle exercise; where, as here, the trial court determines the inmate is ineligible, the process is finished and the inmate has no further opportunity to be resentenced as a second strike offender.5 5 Where an inmate is determined to be eligible for resentencing, the burden shifts to the prosecution to establish dangerousness (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1301 & fn. 25) and, if the prosecution does not carry its burden, resentencing the inmate as a second strike offender necessarily follows (§ 1170.126, subd. (f); Kaulick, supra, at p. 1299). 7.  People v. Totari, supra, 28 Cal.4th 876, is instructive. In that case, the California Supreme Court concluded a trial court’s denial of a motion to vacate a judgment based on a guilty or nolo contendere plea for failure to advise a defendant of the potential adverse immigration consequences resulting from his or her conviction, was appealable. (Id. at pp. 879, 887.) Although section 1016.5, which requires such an advisement and provides for a motion to vacate where the advisement was not given, did not expressly authorize an appeal from the denial of such a motion to vacate, the state high court concluded an appeal was permissible pursuant to section 1237, subdivision (b). (People v. Totari, supra, at pp. 881-882, 887.) The court explained: “[T]he Legislature has established specific requirements for a motion to vacate under section 1016.5. Once the Legislature has determined that a noncitizen defendant has a substantial right to be given complete advisements and affords defendant a means to obtain relief by way of a statutory postjudgment motion to vacate, … a denial order qualifies as an ‘order made after judgment, affecting the substantial rights of the party’ (§ 1237, subd. (b)).” (Id. at pp. 886-887, fn. & italics omitted.) By enacting section 1170.126, the electorate provided a statutory procedure for inmates serving indeterminate life sentences imposed under the three strikes law, before its amendment by Proposition 36, to obtain resentencing in accordance with the terms of the amended law. This conferred a substantial right upon such inmates to have a trial court consider whether they should be resentenced. Accordingly, a trial court’s denial of a request for resentencing under section 1170.126 — even if it occurs at the conclusion of the first step of the procedure — is an “order made after judgment, affecting the substantial rights of the party,” and is therefore appealable pursuant to subdivision (b) of section 1237. (Cf. People v. Stein (1948) 31 Cal.2d 630, 632-633 [denial of postconviction motion to be relieved of habitual criminal status under former § 644 constituted appealable order under § 1237; contrast People v. Pritchett (1993) 20 Cal.App.4th 190, 194 [order denying defendant’s request for resentencing pursuant to 8. § 1170, subd. (d) not appealable as order affecting substantial rights of party, because statute did not give defendant right to request such order, but rather permitted recall of sentence on trial court’s own motion].) II. Defendant was “armed with a firearm” within the meaning of the Act, and so was disqualified from resentencing. Insofar as we are concerned, defendant’s current conviction was for a violation of Health and Safety Code section 11351.5, during the commission of which he was “personally armed with a firearm” in violation of section 12022, subdivision (c).6 A person is “armed with a firearm” within the meaning of section 12022 if he or she “has the specified weapon available for use, either offensively or defensively. [Citations.]” (People v. Bland (1995) 10 Cal.4th 991, 997.) Although section 12022, subdivision (c)’s requirement that the defendant be “personally armed” limits liability to one who actually commits the prohibited conduct, as opposed to imposing vicarious liability (People v. Bland, supra, at p. 998, fn. 3; contrast § 12022, subd. (a)(1)), it does not require that the defendant physically carry the firearm on his or her person (People v. Smith (1992) 9 Cal.App.4th 196, 204; People v. Gonzales (1992) 8 Cal.App.4th 1658, 1661-1663; People v. Mendival (1992) 2 Cal.App.4th 562, 573-574; People v. Superior Court (Pomilia) (1991) 235 Cal.App.3d 1464, 1471-1472.)7 6 The People have not, either here or in the trial court, contended defendant is disqualified from resentencing by any of his other current convictions. Accordingly, we have no occasion to (and do not) decide whether possession of a firearm by a felon constitutes a disqualifying conviction. The People concede defendant was not disqualified by any of the prior strike convictions that were alleged and defendant admitted, but they say they do not have a copy of his prior criminal record so as to confirm he did not suffer convictions for other disqualifying offenses. We can only go on the record before us. It shows no disqualifying prior convictions. 7 Defendant asserts, in his supplemental letter brief, that People v. White (2014) 223 Cal.App.4th 512, petition for review pending, petition filed March 10, 2014, supports his position that “arming” means actual physical possession of the firearm. We do not read 9.  The question before us is whether, having been “personally armed with a firearm” in the commission of his current offense within the meaning of section 12022, subdivision (c), defendant “was armed with a firearm” within the meaning of sections 667, subdivision (e)(2)(C)(iii) and 1170.12, subdivision (c)(2)(C)(iii). If he was not, then he is qualified for resentencing under the Act. (§ 1170.126, subd. (e)(2).) As previously described, the trial court rejected the argument that “armed with a firearm” for purposes of the Act means actual possession, i.e., carrying the firearm on one’s person or physically holding it. The issue is one of the interpretation of a statute and its applicability to a given situation, a question of law we review independently. (Goodman v. Lozano (2010) 47 Cal.4th 1327, 1332; Southern California Edison Co. v. State Board of Equalization (1972) 7 Cal.3d 652, 659, fn. 8; see People v. Cromer (2001) 24 Cal.4th 889, 894.)8 “In interpreting a voter initiative like [the Act], we apply the same principles that govern statutory construction. [Citation.]” (People v. Rizo (2000) 22 Cal.4th 681, 685.) “‘The fundamental purpose of statutory construction is to ascertain the intent of the White so narrowly. White was convicted of possession of a firearm by a felon. (Id. at p. 520.) The White court found the “armed-with-a-firearm exclusion” applied because the record showed the defendant “was in physical possession of a firearm” and, therefore, had “ready access” to it. (Id. at pp. 523-524.) The White court did not hold physical possession was the only circumstance in which a defendant could be found to be armed with a firearm within the meaning of section 667, subdivision (e)(2)(C)(iii), and section 1170.12, subdivision (c)(2)(C)(iii). 8 Because the trial court and parties in this case focused solely on defendant’s section 12022, subdivision (c) enhancement, which, as we have noted, requires personal arming, we are not confronted with vicarious arming, which exists when a defendant who is not personally armed is a principal in a crime and another principal is armed, possibly without the defendant’s knowledge. (See § 12022, subd. (a)(1); People v. Paul (1998) 18 Cal.4th 698, 706; People v. Bland, supra, 10 Cal.4th at p. 998, fn. 3; People v. Overten (1994) 28 Cal.App.4th 1497, 1501-1503.) We express no opinion whether vicarious arming disqualifies an inmate from resentencing under section 1170.126, subdivision (e)(2). 10. lawmakers so as to effectuate the purpose of the law. [Citations.]’” (Horwich v. Superior Court (1999) 21 Cal.4th 272, 276.) “In determining intent, we look first to the words themselves. [Citations.] When the language is clear and unambiguous, there is no need for construction. [Citations.] When the language is susceptible of more than one reasonable interpretation, however, we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part. [Citations.]” (People v. Woodhead (1987) 43 Cal.3d 1002, 1007- 1008.) We also “‘refer to other indicia of the voters’ intent, particularly the analyses and arguments contained in the official ballot pamphlet.’ [Citation.]” (People v. Rizo, supra, 22 Cal.4th at p. 685.) “Using these extrinsic aids, we ‘select the construction that comports most closely with the apparent intent of the [electorate], with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences.’ [Citation.]” (People v. Sinohui (2002) 28 Cal.4th 205, 212.) “‘“The meaning of a statute may not be determined from a single word or sentence; the words must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible. [Citation.]”’” (People v. Mohammed (2008) 162 Cal.App.4th 920, 928.) “‘[W]e do not construe statutes in isolation, but rather read every statute “with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness.” [Citation.]’ [Citation.]” (Horwich v. Superior Court, supra, 21 Cal.4th at p. 276.) The language at issue in sections 667, subdivision (e)(2)(C)(iii) and 1170.12, subdivision (c)(2)(C)(iii) — “During the commission of the current offense, the defendant … was armed with a firearm” (italics added) — is susceptible of two reasonable interpretations: the broad definition espoused by the People (the defendant had the firearm available for use, either offensively or defensively) and the narrower one endorsed by defendant (the defendant carried the firearm on his or her person). “The 11. word ‘[armed]’ conveys no self-evident meaning; its import must be gathered from the overall context in which it appears. [Citation.]” (People v. Woodhead, supra, 43 Cal.3d at p. 1008.) Accordingly, “[b]ecause the words themselves provide no definitive answer, we must look to extrinsic sources.” (Ibid.) Defendant says that because our aim is to interpret the voters’ intent, we must give the language “its ordinary meaning as understood by the electorate,” i.e., “the average voter, unschooled in the patois of criminal law .…” (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 901, 902, italics added.) Based on his view of “the common lay person’s understanding,” which he supports with various dictionary definitions, defendant says the electorate understood being “armed with a firearm” to occur where the defendant was carrying a firearm on his or her person while in the perpetration of a crime.9 For the most part, however, the dictionary definitions are not so limited.10 For instance, the first definition of “armed” given by Webster’s Third New International Dictionary (1986) at page 119 is “furnished with weapons of offense or defense.” The American Heritage Dictionary (2d college ed. 1985) at page 128 defines “armed” as “[e]quipped with weapons.” As commonly understood, the state of being furnished or equipped with weapons is broader than carrying a firearm on one’s person. Moreover, it has long been settled that “[t]he enacting body is deemed to be aware of existing laws and judicial constructions in effect at the time legislation is enacted” (People v. Weidert (1985) 39 Cal.3d 836, 844), “and to have enacted or amended a statute in light thereof” (People v. Harrison (1989) 48 Cal.3d 321, 329). “This principle applies to legislation enacted by initiative. [Citation.]” (People v. Weidert, supra, at p. 844.) 9 Defendant further suggests an average voter likely would have believed “armed” meant a loaded firearm as opposed to an unloaded one. As he concedes, however, the firearm in his case was loaded. Accordingly, we decline to issue what would amount to an advisory opinion on the subject. 10 This is true even with respect to the dictionaries consulted by defendant. 12. Indeed, where, as here, “the language of a statute uses terms that have been judicially construed, ‘“the presumption is almost irresistible”’ that the terms have been used ‘“in the precise and technical sense which had been placed upon them by the courts.”’ [Citations.] This principle [likewise] applies to legislation adopted through the initiative process. [Citation.]” (Id. at pp. 845-846.) In enacting Proposition 36, the voters are thus deemed to have been aware of the longstanding judicially construed definition of “armed with a firearm.” Yet they failed to expressly limit the term when amending sections 667, subdivision (e) and 1170.12, subdivision (c) and enacting section 1170.126. This strongly suggests they intended to disqualify from resentencing those inmates who had a firearm available for use, either offensively or defensively, and not merely those who carried a firearm on their person. (See Robert S. v. Superior Court (1992) 9 Cal.App.4th 1417, 1421-1422.) A conclusion “armed with a firearm,” as used in sections 667, subdivision (e)(2)(C)(iii) and 1170.12, subdivision (c)(2)(C)(iii), and as disqualifies an inmate from resentencing pursuant to section 1170.126, subdivision (e)(2), extends to situations in which the defendant had the firearm available for use, either offensively or defensively, is supported by an examination of the statutory scheme as a whole. The purpose of the three strikes law has been variously stated as being “‘to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses’” (In re Young (2004) 32 Cal.4th 900, 909) and “to promote the state’s compelling interest in the protection of public safety and in punishing recidivism” (People v. Gipson (2004) 117 Cal.App.4th 1065, 1070). Although the Act “diluted” the three strikes law somewhat (People v. Yearwood, supra, 213 Cal.App.4th at p. 167), “[e]nhancing public safety was a key purpose of the Act” (id. at p. 175). Moreover, section 12022 was enacted “to deter those engaged in felonies from creating a risk of death or injury by having a firearm at the scene of the crime. [Citation.]” (People v. Bland, supra, 10 Cal.4th at p. 1001.) 13.  That such a construction of the term comports with voters’ intent is supported by the ballot materials related to Proposition 36. The “OFFICIAL TITLE AND SUMMARY” stated in part that the initiative “[c]ontinues to impose life sentence penalty if third strike conviction was for certain nonserious, non-violent sex or drug offenses or involved firearm possession.” (Voter Information Guide, Gen. Elec. (Nov. 6, 2012) official title and summary, p. 48, italics added.) In summarizing then-existing law, the legislative analysis of Proposition 36 listed, as examples of violent felonies, murder, robbery, and rape; as felonies that were serious but not violent, assault with intent to commit robbery; and as felonies not classified as violent or serious, grand theft (not involving a firearm) and possession of a controlled substance. (Voter Information Guide, Gen. Elec., supra, analysis of Prop. 36 by Legis. Analyst, p. 48.) In summarizing how the initiative measure would shorten sentences for some third strikers, the Legislative Analyst explained there would be some exceptions to the shorter sentences: “Specifically, the measure requires that if the offender has committed certain new or prior offenses, including some drug-, sex-, and gun-related felonies, he or she would still be subject to a life sentence under the three strikes law.” (Id. at p. 49, italics added.) The legislative analysis further described how certain current third strikers would be resentenced, but explained that Proposition 36 “limits eligibility for resentencing to third strikers whose current offense is nonserious, non-violent, and who have not committed specified current and prior offenses, such as certain drug-, sex-, and gun-related felonies.” (Voter Information Guide, Gen. Elec., supra, at p. 50, italics added.) In their “ARGUMENT IN FAVOR OF PROPOSITION 36,” the measure’s proponents spoke in terms of making the punishment fit the crime, saving California money, and making room in prison for dangerous felons. (Voter Information Guide, Gen. Elec., supra, argument in favor of Prop. 36, p. 52.) In their “REBUTTAL TO ARGUMENT AGAINST PROPOSITION 36,” the proponents stated, in part: “Prop. 36 requires that murderers, rapists, child molesters, and other dangerous criminals serve 14. their full sentences. [¶] … [¶] Today, dangerous criminals are being released early from prison because jails are overcrowded with nonviolent offenders who pose no risk to the public. Prop. 36 prevents dangerous criminals from being released early. People convicted of shoplifting a pair of socks, stealing bread or baby formula don’t deserve life sentences.” (Voter Information Guide, Gen. Elec., supra, rebuttal to argument against Prop. 36, p. 53, original italics omitted, italics added.) Section 1 of the proposed law found and declared: “The People enact the Three Strikes Reform Act of 2012 to restore the original intent of California’s Three Strikes law — imposing life sentences for dangerous criminals like rapists, murderers, and child molesters. “This act will: “(1) Require that murderers, rapists, and child molesters serve their full sentences — they will receive life sentences, even if they are convicted of a new minor third strike crime. “(2) Restore the Three Strikes law to the public’s original understanding by requiring life sentences only when a defendant’s current conviction is for a violent or serious crime. “(3) Maintain that repeat offenders convicted of non-violent, non- serious crimes like shoplifting and simple drug possession will receive twice the normal sentence instead of a life sentence. “(4) Save hundreds of millions of taxpayer dollars every year for at least 10 years. The state will no longer pay for housing or long-term health care for elderly, low-risk, non-violent inmates serving life sentences for minor crimes. “(5) Prevent the early release of dangerous criminals who are currently being released early because jails and prisons are overcrowded with low-risk, non-violent inmates serving life sentences for petty crimes.” (Voter Information Guide, Gen. Elec., supra, text of proposed law, § 1, p. 105, italics added.) The foregoing materials expressly distinguished between dangerous criminals who were deserving of life sentences, and petty criminals (such as shoplifters and those 15. convicted of simple drug possession) who posed little or no risk to the public and did not deserve life sentences. We do not view the electorate as deeming someone with a firearm available for use, either offensively or defensively, in the commission of a felony to be nondangerous or to pose little risk to the public.11 Defendant observes that the Act refers to specific statutory definitions or code sections in some places (e.g., §§ 667, subd. (e)(2)(C)(iv), 1170.12, subd. (c)(2)(C)(iv)), but not in the context of the “arming” basis for disqualification. He argues this implies the electorate intended not to use a technical, legal definition of the phrase “armed with a firearm,” but rather intended the common, lay definition of the term. We disagree. There are multiple statutes in this state’s codes that refer to arming. (E.g., §§ 1203.06, subd. (a)(2), 12022; Health & Saf. Code, § 11370.1, subd. (a).) Some expressly define the term (e.g., § 1203.06, subd. (b)(3); Health & Saf. Code, § 11370.1, subd. (a), 2d par.), while others rely on judicial construction (e.g., § 12022; People v. Bland, supra, 10 Cal.4th at p. 997). By not specifically including any, the electorate excluded none. (See 11 Defendant points out that subdivision (c) of section 12022 had been amended, by the time Proposition 36 was enacted, to provide for service of the enhancement term in county jail, not state prison, under so-called realignment legislation. (See Stats. 2011, ch. 15, § 506, eff. Apr. 4, 2011, operative Jan. 1, 2012.) Because one of the Legislature’s purposes in enacting realignment legislation was to “[r]ealign[] low-level felony offenders who do not have prior convictions for serious, violent, or sex offenses to locally run community-based corrections programs” as a means of “improv[ing] public safety outcomes among adult felons and facilitat[ing] their reintegration back into society” (§ 17.5, subd. (a)(5)), he suggests, the electorate enacting Proposition 36 is deemed to have known “that the Legislature had designated Penal Code [section] 12022[, subdivision] (c) as [a section] 1170[, subdivision] (h) offense, and … would have understood a Penal Code [section] 12022[, subdivision] (c) enhancement to be ‘non- violent’ and an offender to be ‘low-level.’” As defendant acknowledges, however, offenders with prior strike convictions are precluded from being sentenced pursuant to section 1170, subdivision (h). (§ 1170, subd. (h)(3).) Accordingly, the Legislature’s assessment of the seriousness of a section 12022, subdivision (c) enhancement for purposes of realignment does not assist our analysis of electoral intent toward third strike offenders who have firearms available for use in commission of their crimes. 16. Gikas v. Zolin (1993) 6 Cal.4th 841, 852 [under canon of construction expressio unius est exclusio alterius, expression of some things in statute necessarily means exclusion of other things not expressed].) Finally, defendant says we are required to construe section 1170.126 so as to avoid doubts as to its constitutionality. He suggests that there is “very little practical difference” between being “armed with a firearm” within the meaning of section 12022, subdivision (c), and being a felon in possession of a firearm within the meaning of section 29800, subdivision (a). Because someone found guilty of violating section 29800, subdivision (a) (or former § 12021) would be eligible for resentencing under the Act, the argument runs, denying eligibility to someone convicted of essentially the same conduct under section 12022, subdivision (c) could raise difficult equal protection problems.12 “If a statute is susceptible of two constructions, one of which will render it constitutional and the other unconstitutional in whole or in part, or raise serious and doubtful constitutional questions, the court will adopt the construction which, without doing violence to the reasonable meaning of the language used, will render it valid in its entirety, or free from doubt as to its constitutionality, even though the other construction is equally reasonable. [Citations.] The basis of this rule is the presumption that the Legislature intended, not to violate the Constitution, but to enact a valid statute within the scope of its constitutional powers.” (Miller v. Municipal Court (1943) 22 Cal.2d 818, 828; accord, People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 509; see also 12 Citing People v. Alexander (2010) 49 Cal.4th 846, 880, footnote 14, and People v. Burgener (2003) 29 Cal.4th 833, 860-861, footnote 3, the People say defendant forfeited this argument by failing to raise it in the trial court. Both of those cases dealt with substantive equal protection claims. As defendant points out, however, he is not raising an independent legal claim, but rather is arguing a rule of statutory construction. We find no forfeiture. 17. Clark v. Martinez (2005) 543 U.S. 371, 380-381.) This presumption applies to initiative measures. (People v. Davenport (1985) 41 Cal.3d 247, 264.) For this rule of construction to apply, however, “the statute must be realistically susceptible of two interpretations and the interpretation to be rejected must raise grave and doubtful constitutional questions.” (People v. Anderson (1987) 43 Cal.3d 1104, 1146.) We do not believe either of these factors counsels against our interpretation of “armed with a firearm” as used in the Act. First, although we have found the phrase to be susceptible of two reasonable interpretations, this is so only when it is considered in isolation. When the phrase is considered in light of the electorate’s intent and the entire statutory scheme, it is not realistically susceptible of defendant’s interpretation requiring that the firearm be carried on one’s person. Second, we do not believe our interpretation raises grave and doubtful constitutional questions. “[A]ll meritorious equal protection claims require a showing that ‘the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.’ [Citation.] In other words, ‘neither the Fourteenth Amendment of the Constitution of the United States nor the California Constitution [citations] precludes classification by the Legislature or requires uniform operation of the law [for] persons who are different … “with respect to the legitimate purpose of the law.”’ [Citations.]” (People v. Wutzke (2002) 28 Cal.4th 923, 943-944.) Thus, “we ask at the threshold whether two classes that are different in some respects are sufficiently similar with respect to the laws in question to require the government to justify its differential treatment of these classes under those laws.” (People v. McKee (2010) 47 Cal.4th 1172, 1202.) Defendant fails to convince us of the requisite similarity here. (Compare People v. Bland, supra, 10 Cal.4th at p. 1002 [§ 12022 requires arming to be in commission or attempted commission of underlying felony] with People v. Jones (2002) 18. 103 Cal.App.4th 1139, 1148 [former § 12021 does not require commission of additional crime].) We conclude the trial court correctly found defendant was disqualified from resentencing under the Act. Accordingly, defendant is not entitled to a remand for a determination whether his release would pose an unreasonable risk of danger to public safety. DISPOSITION The judgment is affirmed. _____________________ DETJEN, J. WE CONCUR: _____________________ LEVY, Acting P.J. _____________________ LAPORTE, J.† † Judge of the Superior Court of Kings County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 19. 

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN JUDGMENT RENDERED JUNE 3, 2014 NO. 03-12-00278-CR Mark David Simmons, Appellant v. The State of Texas, Appellee APPEAL FROM 22ND DISTRICT COURT OF HAYS COUNTY BEFORE JUSTICES PURYEAR, ROSE, AND GOODWIN AFFIRMED -- OPINION BY JUSTICE PURYEAR This is an appeal from the judgment of conviction entered by the trial court. Having reviewed the record and the parties’ arguments, the Court holds that there was no reversible error in the trial court’s judgment. Therefore, the Court affirms the trial court’s judgment of conviction. Because appellant is indigent and unable to pay costs, no adjudication of costs is made. 

147 F.3d 388 Anita SCHADLER, Plaintiff-Appellant,v.ANTHEM LIFE INSURANCE COMPANY; Anthem Benefit ServicesInc.; Acordia Benefits of the South, Inc.; Allied Signal,Inc.; Allied Signal Technical Services Corporation; AlliedSignal Team/White Sands, Defendants-Appellees. No. 97-10491. United States Court of Appeals,Fifth Circuit. July 17, 1998.Rehearing Denied Aug. 13, 1998. David R. Richards, Santa Fe, NM, for Schadler. Ken W. Good, Billy D. Anderson, Tyler, TX, for Defendants-Appellees. Appeal from the United States District Court for the Northern District of Texas. Before KING and BARKSDALE, Circuit Judges, and DUPLANTIER,* District Judge. KING, Circuit Judge: 1 In this case under the Employee Retirement Income Security Act, plaintiff-appellant Anita Schadler appeals the district court's determination that she is ineligible to receive benefits under her husband's accidental death and dismemberment policy based upon an exclusion asserted by defendants-appellees for the first time on appeal to the district court. Because we conclude that the plan administrator failed to make the initial benefits determination as required by the plan, we vacate the judgment of the district court and remand with instructions to remand to the plan administrator to make the necessary benefits decision in the first instance. I. FACTUAL & PROCEDURAL BACKGROUND 2 Prior to May 1994, James T. Schadler (Mr. Schadler), the late husband of plaintiff-appellant Anita Schadler (Mrs. Schadler), worked as an engineer for Lockheed Corporation (Lockheed) at the White Sands Test Facility in New Mexico. In May 1994, defendant-appellee Allied Signal Team/White Sands (Allied) replaced Lockheed as the contractor operating the White Sands facility, and Mr. Schadler thereby became an employee of Allied on May 3, 1994. 3 As part of his employment, Allied offered Mr. Schadler a package of employee benefits (the Plan). One option included in the Plan was a voluntary accidental death and dismemberment policy (the VAD&D Policy). Defendant-appellee Anthem Insurance Company (Anthem) underwrote and administered the VAD&D Policy and defendant-appellee Acordia Benefits of the South, Inc. (Acordia) served as its third-party administrator. The VAD&D Policy provided that Mr. Schadler could enroll upon submitting the appropriate paperwork and agreeing to make certain premium payments. 4 On May 12, 1994, Mr. Schadler died as a result of a mixed-drug intoxication. His autopsy revealed a recent needle puncture that was not associated with resuscitative efforts, and a toxicologic examination of his body fluids revealed "cocaine, Desipramine, and markedly elevated levels of morphine." Mr. Schadler had a history of drug abuse. 5 Following Mr. Schadler's death, Mrs. Schadler sought payment under various policies included in the Plan, including the VAD&D Policy. In a letter dated April 24, 1995, Anthem explained that Mrs. Schadler was not entitled to recover under the VAD&D Policy because it had never received an enrollment card from Mr. Schadler and had not billed him for coverage under the VAD&D Policy. Anthem therefore concluded that "no VAD&D policy was ever issued to James L. Schadler."1 6 Following Anthem's determination that Mr. Schadler was not covered by the VAD&D Policy, Mrs. Schadler timely filed this action against defendants-appellees Anthem, Anthem Benefit Services, Inc., Acordia Benefits of the South, Inc., Allied Signal, Inc., and Allied Signal Technical Services Corporation (collectively, Defendants) pursuant to the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001-1461.2 She contended in her complaint that Mr. Schadler had completed and returned the VAD&D Policy's enrollment card, and she argued that Anthem's failure to receive the enrollment card was due to an "inadvertent error, omission or failure" on the part of Allied, for which the Plan indicated that an employee may not be deprived of coverage. 7 On March 6, 1996, Defendants moved for summary judgment, arguing that "no application or premium was ever received and no coverage was ever in force for a VAD&D policy." In the alternative, Defendants argued for the first time that, even if the VAD&D Policy had been in force, recovery was precluded by several exclusions contained therein, which they described as follows:3 8 -- Intentionally self-inflicted injuries, or any attempt thereof, while sane or insane. 9 -- The taking of drugs or poisons or asphyxiation from the inhaling of gas, when done on a voluntary basis. (This does not apply to drugs that are taken on the advice of a physician). 10 For reasons that remain unclear, in Defendants' Supplemental Motion for Summary Judgment they began to abandon their original lack of coverage defense, stating that, "[r]egardless of whether James Schadler properly enrolled for the benefits in dispute, it is undisputed that the summary and plan at issue included language specifically excluding benefits for intentionally self-inflicted injury." Moreover, Defendants' Proposed Findings of Fact and Conclusions of Law did not mention the lack of coverage defense, stating only that Mr. Schadler's death was excluded from coverage based on the intentionally self-inflicted injury and drug-use exclusions. In response, Mrs. Schadler argued that Defendants could not rely on the drug-use exclusion because it was not listed in the Summary Plan Description (SPD). She also contended that Defendants should not be allowed to rely on the intentionally self-inflicted injury exclusion because they did not assert it until they moved for summary judgment in the district court. 11 The district court denied Defendants' motion for summary judgment. Following a bench trial consisting of the admission of depositions, affidavits, and other exhibits and of closing arguments by counsel, the district court determined that circuit precedent dictated that Defendants could not deny Mrs. Schadler benefits based upon the drug-use exclusion because it was not listed in the SPD. The court nevertheless found that she was ineligible to receive benefits under the VAD&D Policy because Mr. Schadler's death was the result of illicit drug use, which the court found constituted an intentionally self-inflicted injury and was therefore excluded from coverage. Mrs. Schadler timely appealed the judgment of the district court. II. DISCUSSION 12 Mrs. Schadler argues that the district court erred in finding that she was not entitled to benefits. She first contends that ERISA and the regulations promulgated pursuant to it dictate that Defendants should not have been allowed to assert the intentionally self-inflicted injury exclusion for the first time before the district court. Alternatively, Mrs. Schadler asserts that even if Defendants are allowed to rely on the intentionally self-inflicted injury exclusion, it does not preclude her recovery because Mr. Schadler did not intend to injure himself. 13 Defendants respond that they have asserted the same factual basis for denying the claim throughout the process and that Mrs. Schadler therefore was not prejudiced by their reliance on the intentionally self-inflicted injury exclusion for the first time before the district court. In addition, they argue that the district court's decision that the intentionally self-inflicted injury exclusion precluded recovery is correct.4 Following a brief discussion of the law surrounding suits challenging denials of benefits under ERISA, we address each of these arguments in turn. A. 14 As the Supreme Court has explained, "ERISA was enacted 'to promote the interests of employees and their beneficiaries in employee benefit plans' and 'to protect contractually defined benefits.' " Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 113, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989) (citations omitted) (quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 90, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983) and Massachusetts Mutual Life Ins. Co. v. Russell, 473 U.S. 134, 148, 105 S.Ct. 3085, 87 L.Ed.2d 96 (1985), respectively). Therefore, 15 ERISA sets certain minimum requirements for procedures and notification when a plan administrator denies a claim for benefits. In a nutshell, ERISA requires that specific reasons for denial be communicated to the claimant and that the claimant be afforded an opportunity for "full and fair review" by the administrator. 16 Halpin v. W.W. Grainger, Inc., 962 F.2d 685, 688 (7th Cir.1992). 17 These procedures are set forth in § 1133 of ERISA and in the Department of Labor regulations promulgated pursuant to that section. Section 1133 provides: 18 In accordance with regulations of the Secretary, every employee benefit plan shall-- 19 (1) provide adequate notice in writing to any participant or beneficiary whose claim for benefits under the plan has been denied, setting forth the specific reasons for such denial, written in a manner calculated to be understood by the participant, and 20 (2) afford a reasonable opportunity to any participant whose claim for benefits has been denied for a full and fair review by the appropriate named fiduciary of the decision denying the claim. 21 29 U.S.C. § 1133. The Department of Labor Regulations further elaborate on § 1133(1)'s notice requirement. Section 2560.503-1(f) of Title 29 of the Code of Federal Regulations provides as follows: 22 (f) Content of notice. A plan administrator or, if paragraph (c) of this section is applicable, the insurance company, insurance service, or other similar organization, shall provide to every claimant who is denied a claim for benefits written notice setting forth in a manner calculated to be understood by the claimant: 23 (1) The specific reason or reasons for the denial; 24 (2) Specific reference to pertinent plan provisions on which the denial is based; 25 (3) A description of any additional material or information necessary for the claimant to perfect the claim and an explanation of why such material or information is necessary; and 26 (4) Appropriate information as to the steps to be taken if the participant or beneficiary wishes to submit his or her claim for review. 27 29 C.F.R. § 2560.503-1(f). 28 Because ERISA and the regulations promulgated pursuant to it " 'were intended to help claimants process their claims efficiently and fairly,' " Short v. Central States, Southeast & Southwest Areas Pension Fund, 729 F.2d 567, 575 (8th Cir.1984) (quoting Richardson v. Central States, Southeast & Southwest Areas Pension Fund, 645 F.2d 660, 665 (8th Cir.1981)), the "requirement that the [administrator] disclose the basis for its decision is necessary so that plan beneficiaries 'can adequately prepare ... for any further administrative review, as well as an appeal to the federal courts,' " Matuszak v. Torrington Co., 927 F.2d 320, 323 (7th Cir.1991) (alteration in original) (quoting Richardson, 645 F.2d at 665). See also Halpin, 962 F.2d at 689 ("[T]hese regulations are designed to afford the beneficiary an explanation of the denial of benefits that is adequate to ensure meaningful review of that denial."). Courts therefore have held that ERISA and its regulations require that, when a plan administrator denies a claim, it must " 'issue a written opinion that includes specific reasons for the decision. Baldfaced conclusions do not satisfy this requirement.' " Short, 729 F.2d at 575 (quoting Richardson, 645 F.2d at 665). 29 In determining whether to pay or deny benefits, a plan administrator must make two general types of determinations: "First, he must determine the facts underlying the claim for benefits.... Second, he must then determine whether those facts constitute a claim to be honored under the terms of the plan." Pierre v. Connecticut Gen. Life Ins. Co./Life Ins. Co. of N. Am., 932 F.2d 1552, 1557 (5th Cir.1991). The requirement that the administrator must give reasons for its benefits decision applies to these two types of determinations. 30 When a plan has denied benefits to a claimant, § 1132 of ERISA provides that the claimant may bring a suit in federal district court "to recover benefits due to him under the terms of his plan." 29 U.S.C. § 1132(a)(1)(B). In Firestone Tire & Rubber Co. v. Bruch, the Supreme Court delineated the appropriate standards of review of the plan administrator's second decision--i.e., its interpretation of the provisions of the plan. 489 U.S. 101, 108, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). Relying on principles of trust law, the Court held that "a denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan." Id. at 115, 109 S.Ct. 948; see also Sweatman v. Commercial Union Ins. Co., 39 F.3d 594, 597-98 (5th Cir.1994); Wildbur v. ARCO Chem. Co., 974 F.2d 631, 636 (5th Cir.), modified on other grounds, 979 F.2d 1013 (5th Cir.1992). Where a plan does vest the administrator with such discretionary authority, courts review the decision under the more deferential abuse of discretion standard.5 Barhan v. Ry-Ron, Inc., 121 F.3d 198, 201 (5th Cir.1997); Wildbur, 974 F.2d at 636. Finally, even when the district court's review of the administrator's interpretation of the provisions of the plan is limited by the use of a deferential standard, we have held that the district court "is not confined to the administrative record in determining whether, under our analytical framework, [the] plan administrator abused his discretion in making a benefit determination."6 Wildbur, 974 F.2d at 639. 31 Bruch addressed only the second determination made by the administrator, leaving open the question of what standard of review should be applied to an administrator's factual determinations. See Bruch, 489 U.S. at 108, 109 S.Ct. 948 (noting that its discussion was "limited to the appropriate standard of review in § 1132(a)(1)(B) actions challenging denials of benefits based on plan interpretations " (emphasis added)); Pierre, 932 F.2d at 1557 ("Bruch addressed the proper standard of review that is to be given to the plan administrator's second determination. Bruch did not speak to the first."). As to the first determination--the findings of fact--we have held that the administrator's decision should always be reviewed for an abuse of discretion. Pierre, 932 F.2d at 1562; see also Southern Farm Bureau Life Ins. Co. v. Moore, 993 F.2d 98, 101 (5th Cir.1993). Moreover, the reviewing court "should evaluate the administrator's fact findings regarding the eligibility of a claimant based on the evidence before the administrator, assuming that both parties were given an opportunity to present facts to the administrator." Wildbur, 974 F.2d at 639; see also Southern Farm Bureau, 993 F.2d at 102. 32 In sum, ERISA and its regulations contemplate a system in which the administrator makes a decision as to whether to grant or deny benefits based on the factual scenario and based on its interpretation of the relevant plan provisions. The administrator then provides the claimant with notice of the decision, including, among other things, the "specific reason or reasons for the denial" and "[s]pecific reference to pertinent plan provisions on which the denial is based." 29 C.F.R. § 2560.503-1(f). If the administrator denies benefits, the claimant may bring suit under § 1132. The district court will then engage in a deferential review of the administrator's factual determinations, based on the record before the administrator. Next, depending on whether the plan expressly grants the administrator discretion in interpreting its terms, the reviewing court will review the administrator's interpretation of the plan provisions either under a de novo or an abuse of discretion standard. Thus, the end product of a claims review process wherein § 1133 and its regulations have been followed faithfully is a benefits decision that is thoroughly informed by the relevant facts and the terms of the plan and, if benefits are denied, includes an explanation of the denial that is adequate to insure meaningful review of that denial. Having laid out the proper procedures to be followed, we now turn to an examination of how this process functioned in the instant case. B. 33 The Plan at issue in this case vests the administrator with the discretion to interpret its terms.7 The administrator determined that Mrs. Schadler was not entitled to recover because the VAD&D Policy had never gone into effect and therefore had never provided coverage for Mr. Schadler. Mrs. Schadler then filed suit pursuant to § 1132, contending that the terms of the Plan indicated that a beneficiary would not be penalized for his employer's failure to submit his enrollment documents properly. Defendants moved for summary judgment, and they asserted for the first time that even if the VAD&D Policy had been in effect as to Mr. Schadler, coverage was precluded based on several exclusions contained in the VAD&D Policy, including one relating to intentionally self-inflicted injury.8 34 Mrs. Schadler now argues that Defendants should be barred from raising the intentionally self-inflicted injury exclusion for the first time in the district court. Defendants respond that the judgment of the district court should be affirmed because they have relied on the same "factual basis" for their denial of benefits throughout the process. For the reasons that follow, we conclude that the case must be remanded to the administrator so that it may exercise its discretion and determine whether, under the circumstances of this case, the intentionally self-inflicted injury exclusion prevents Mrs. Schadler from recovering under the VAD&D Policy. 35 Mrs. Schadler argues that Defendants should not have been allowed to assert the intentionally self-inflicted injury exclusion for the first time before the district court because ERISA and the regulations promulgated pursuant to it mandate that when an employee benefit plan provides a claimant with notice that her claim has been denied, it must specifically reference the plan provision upon which the administrator relied in making the decision to deny benefits. Mrs. Schadler contends that because Defendants failed to specifically reference the intentionally self-inflicted injury exclusion in their denial letter, they have waived that exclusion and should have been barred from raising it on appeal to the district court.9 36 We agree with Mrs. Schadler that, once the interpretation of plan provisions becomes an issue, both the administrator and the claimant should (1) adduce, at the earliest possible point in the process, all possible reasons bearing on the granting or denial of benefits under the plan and (2) develop the necessary factual record so that those issues may be addressed and decided. Doing so will ultimately further ERISA's purpose of streamlining and shortening the timeframe for disposing of claims. However, whatever may be the case in other circumstances, we do not think that a finding that Defendants have waived the intentionally self-inflicted injury exclusion is warranted in the instant case. This is not a situation in which the administrator asserted one plan exclusion at the administrative level and trial counsel then bolstered the administrator's position before the district court with other exclusions. Indeed, in denying the claim in the first instance, the administrator advanced a non-frivolous argument that the VAD&D Policy had never been in effect as to Mr. Schadler. The administrator therefore was not called upon to make any further benefits determinations or even to interpret the terms of the Plan at all in concluding that Mr. Schadler was not covered. See Vizcaino v. Microsoft Corp., 120 F.3d 1006, 1013 (9th Cir.1997) (en banc) (remanding the case to the plan administrator which had not interpreted the provision at issue in the first instance because it had found for the defendants on alternative grounds), cert. denied, --- U.S. ----, 118 S.Ct. 899, 139 L.Ed.2d 884 (1998); id. at 1022 n. 4 (O'Scannlain, J., concurring in part and dissenting in part) ("[T]he Plan Administrator had no need to reach the question of the meaning of [the plan provision at issue on appeal] since it had already determined that the [plaintiffs] were not entitled to benefits on several other grounds. I am not persuaded that by failing to interpret expressly a provision in the Plan the Administrator rendered the provision a nullity."). As a result, we are unwilling to conclude that the administrator has, by determining that Mr. Schadler was not covered by the VAD&D Policy, waived the right to interpret any particular provisions of the VAD&D Policy once it has been shown that Mr. Schadler was in fact covered. 37 Defendants respond to Mrs. Schadler's waiver argument by contending that she has suffered no prejudice as a result of their assertion of the intentionally self-inflicted injury exclusion for the first time before the district court because they have at all times claimed that the basis for their denial of coverage is the fact that Mr. Schadler died as a result of a voluntary, self-administered drug overdose. They therefore argue that the district court's judgment should be affirmed. We disagree. 38 First, although from the beginning Defendants claimed that Mr. Schadler was not entitled to coverage under the AD&D Policy (as distinguished from the VAD&D Policy at issue here) based on the fact that he died as a result of a voluntary drug overdose, they did not assert this with respect to the VAD&D Policy until their motion for summary judgment. Prior to that point in the claims process and the ensuing litigation, Defendants' defense to Mrs. Schadler's claim under the VAD&D Policy was based entirely on their argument that Mr. Schadler never effectively enrolled in the VAD&D Policy and therefore was not entitled to coverage. Therefore, Defendants' claim that they have always asserted the same "factual basis" in denying this claim is simply not true. Second, even if Defendants had stated from the beginning that their denial of coverage was based on the fact that Mr. Schadler died from a voluntary drug overdose, that would not have satisfied § 2560.503-1(f) which mandates that, in addition to providing the factual reasons for the denial, the notice to the claimant must also contain "[s]pecific reference to pertinent plan provisions on which the denial is based." 29 C.F.R. § 2560.503-1(f)(2).10 39 As we find that neither Mrs. Schadler's nor Defendants' arguments are compelling in the instant situation, we turn to our own analysis of what the law requires in this case. ERISA and Bruch indicate that the job of the district court is to review the administrator's fact-finding and its interpretation of an employee benefit plan's provisions. See Bruch, 489 U.S. at 111, 109 S.Ct. 948. Indeed, the Supreme Court has instructed us that, when an employee benefit plan vests discretion in the administrator, principles of trust law require that we leave the plan administrator's interpretation undisturbed if reasonable. See id. In this case, however, the administrator never had occasion to interpret the intentionally self-inflicted injury exclusion upon which Defendants now rely to deny coverage because it concluded at the outset that the VAD&D Policy never covered Mr. Schadler. 40 Although we have not previously addressed an ERISA case presenting a similar situation, several other courts have done so and have unanimously concluded that a post hoc rationalization for a decision to deny benefits is not equivalent to an administrator's exercise of its discretion. See, e.g., Vizcaino, 120 F.3d at 1013-15 (remanding a case for a decision by the administrator where, for the first time at trial, the defendants asserted an interpretation of a plan provision that had not been considered in the administrator's decision to deny benefits); Gallo v. Amoco Corp., 102 F.3d 918, 923 (7th Cir.1996) ("If the justification that the plan administrator offers in court is inconsistent with the reason that he gave the applicant, the justification will be undermined."), cert. denied, --- U.S. ----, 117 S.Ct. 2532, 138 L.Ed.2d 1031 (1997); Matuszak v. Torrington Co., 927 F.2d 320, 323 (7th Cir.1991) ("This Court would emasculate ERISA's disclosure requirement if it were to defer to reasons that the Board first identified on appeal in the District Court, years after the decision at issue. No plan can authorize such a result ... ."); Adelson v. GTE Corp., 790 F.Supp. 1265, 1273 (D.Md.1992) (refusing to apply a deferential standard of review to a rationale for denying benefits that was not advanced by the administrator and was only brought forth later by attorneys for the plan on review by the district court). These courts reason that "no plan can provide discretion to deny benefits for reasons identified only years after the fact." Matuszak, 927 F.2d at 322. 41 The district court, recognizing that the administrator did not rely on the intentionally self-inflicted injury exclusion in deciding to deny benefits, determined that it should therefore apply a de novo standard of review and, in effect, made the benefits decision itself. "Whether the district court employed the correct standard of review to an administrator's eligibility determination/plan interpretation is a question of law." Chevron Chem. Co. v. Oil, Chem. & Atomic Workers Local Union, 47 F.3d 139, 142 (5th Cir.1995). We do not think that the application of de novo review is appropriate under the circumstances of this case. 42 Because Defendants denied that coverage ever existed until the matter was before the district court, the administrator never had occasion to exercise any discretion to interpret the terms of the Plan. For reasons that are unclear, Defendants now agree that the VAD&D Policy was in effect as to Mr. Schadler, and they now ask us to affirm the district court's denial of coverage on the basis of the intentionally self-inflicted injury exclusion. However, "we should not allow ourselves to be seduced into making a decision which belongs to the plan administrator in the first instance." Vizcaino, 120 F.3d at 1013. As the Ninth Circuit has explained, " 'It is not the court's function ab initio to apply the correct standard to [the participant's] claim. That function, under the Plan, is reserved to the Plan administrator.' " Saffle v. Sierra Pac. Power Co. Bargaining Unit Long Term Disability Income Plan, 85 F.3d 455, 461 (9th Cir.1996) (alteration in original) (quoting Henry v. The Home Ins. Co., 907 F.Supp. 1392, 1398-99 (C.D.Cal.1995)). We would stand ERISA on its head if we countenanced bypassing the procedures provided by the statute for making benefits decisions in favor of making the initial benefits decision ourselves. We therefore conclude that the district court erred in engaging in a de novo review and making the factual and legal inquiry in the first instance. Rather, when it became clear that Defendants were no longer asserting that Mr. Schadler had not effectively enrolled in the VAD&D Policy, the case should have been remanded to the administrator for the development of a full factual record and for the making of the decision on whether to grant or deny benefits on the basis of the intentionally self-inflicted injury exclusion in the first instance.11 III. CONCLUSION 43 For the foregoing reasons, we VACATE the judgment of the district court and REMAND the case to the district court with instructions to REMAND to the Plan administrator for further proceedings consistent with this opinion. Costs shall be borne by Defendants. * District Judge of the Eastern District of Louisiana, sitting by designation 1 Anthem also stated in the letter that Mrs. Schadler was not entitled to recover under an optional life insurance policy (the OLI Policy) or under a separate accidental death and dismemberment policy that was funded by Mr. Schadler's employer (the AD&D Policy). Anthem denied coverage on the OLI Policy because "no Anthem Voluntary Life insurance product was offered" to Mr. Schadler. It denied payment on the AD&D policy on the basis of a provision excluding recovery for deaths resulting from "the taking of drugs or poisons ... when done on a voluntary basis" unless those drugs "are taken on the advice of a physician." 2 In her complaint, Mrs. Schadler also challenged the denial of benefits under the OLI Policy and under the AD&D Policy. The parties settled the dispute over the AD&D Policy before trial. In her brief on appeal, Mrs. Schadler does not contest the denial of coverage under the OLI Policy, and we therefore do not address that claim here. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.1987) 3 Defendants' also contended that Mrs. Schadler was not entitled to recover based on an exclusion for death or dismemberment resulting from "committing or attempting to commit an assault or felony." However, they no longer assert this exclusion as a basis for their denial of Mrs. Schadler's claim under the VAD&D Policy, and we therefore need not address it. See Brinkmann, 813 F.2d at 748 4 Alternatively, Defendants argue that the district court incorrectly determined that they were foreclosed from relying on the drug-use exclusion. In Hansen v. Continental Insurance Co., 940 F.2d 971 (5th Cir.1991), we held that where the SPD and the terms of the plan conflict, the SPD controls. Id. at 982. However, we reserved for another day the issue of whether an ERISA claimant must show reliance on the terms of the SPD in order to benefit from the terms within it that conflict with the plan. Id. at 983. Defendants now assert that this court should follow the majority of other circuits and hold that in order for the SPD to control when in conflict with terms contained within the plan, the plaintiff must prove that she relied on the SPD. However, Defendants failed to include this issue in the parties' Joint Pre-Trial Order, and they now raise it for the first time on appeal. " 'Once the [pretrial] order is entered, it controls the scope and course of the trial. Fed.R.Civ.P. 16. If a claim or issue is omitted from the order, it is waived.' " Valley Ranch Dev. Co. v. FDIC, 960 F.2d 550, 554 (5th Cir.1992) (alteration in original) (quoting Flannery v. Carroll, 676 F.2d 126, 129 (5th Cir.1982)). Moreover, the fact that the district court mentioned reliance in a footnote is not sufficient to permit Defendants to argue it before this court because the record reveals that it was not litigated below. Accordingly, we conclude that Defendants have failed to preserve any challenge to the district court's determination that they are precluded from relying on the drug-use exclusion to deny benefits in this case 5 Where the court must apply the abuse of discretion standard to the administrator's interpretation of the plan, we have delineated a two-step inquiry for determining whether the administrator's decision will be affirmed The court must initially determine whether the administrator's interpretation of the plan is the legally correct interpretation. If the administrator's interpretation of the plan is legally correct, then the inquiry ends because no abuse of discretion could have occurred. However, if the court determines that the administrator's determination is not legally correct, then it must further determine whether the administrator's decision was an abuse of discretion. Spacek v. Maritime Ass'n, ILA Pension Plan, 134 F.3d 283, 292-93 (5th Cir.1998) (citation omitted) (citing Wildbur, 974 F.2d at 637). 6 Other evidence that may be relevant to this determination includes, for example, evidence indicating whether the administrator's interpretations of plan provisions have been consistent. See Wildbur, 974 F.2d at 639 n. 15 7 The Plan states: "Anthem Life Insurance Company reserves the right to determine eligibility and construe the terms of the Plan." Although it does not include the term "discretion," this statement is adequate to vest the administrator with the discretion to interpret the terms of the Plan. See Wildbur, 974 F.2d at 637 (noting that the focus in determining whether administrators have been granted discretion to interpret the terms of the plan should be on "the breadth of the administrators' power--their 'authority to determine eligibility for benefits or to construe the terms of the plan' " and not on an "incantation of the word 'discretion' or any other 'magic word' " (quoting Block v. Pitney Bowes, Inc., 952 F.2d 1450, 1453 (D.C.Cir.1992))) 8 The Plan's intentionally self-inflicted injury exclusion states: "No benefits will be paid for losses caused or contributed to by: ... (5) suicide, attempted suicide, or intentionally self-inflicted injury, while sane or insane." 9 Relying on Hansen v. Western Greyhound Retirement Plan, 859 F.2d 779 (9th Cir.1988), Defendants respond, and the district court held, that no principle of estoppel precludes them from changing the basis for their denial of benefits. Id. at 781 n. 1. In Hansen, the Ninth Circuit held that "an employee benefit fund may not be required by estoppel to make payments not authorized by a written plan." Id. at 781. In a footnote, the court also noted that "[e]ven if Trust officials offered varying explanations [for their denial of the plaintiff's claim], their confusion could not estop enforcement of the written plan provisions." Id. at 781 n. 1. Hansen is inapposite to the case at bar Hansen involved a claim for retirement benefits by a plaintiff who, according to the written terms of the plan, was ineligible to receive the benefits he sought. Id. at 781. The Hansen claimant based his claim for equitable estoppel on his reliance on a misrepresentation made to him by a plan official regarding his eligibility. Id. In contrast, no one now disputes that Mr. Schadler was eligible to receive benefits under the terms of the Plan. Moreover, Mrs. Schadler advances no claim that the Plan misled her husband as to his coverage, and, as she points out, she is not asking the court to estop Defendants from asserting the exclusion for equitable reasons. Rather, she contends that because the Plan failed to assert the intentionally self-inflicted injury exclusion in the first instance as a reason for its denial of her claim, it has now waived that exclusion. 10 We note also that in many cases the factual development that takes place at the administrative level will differ depending on the plan provisions upon which the administrator relies to deny benefits. In the case at bar, for example, the no-coverage defense, the drug-use exclusion, and the intentionally self-inflicted injury exclusion each requires the development of different factual issues In order to address the application of the intentionally self-inflicted injury exclusion to Mrs. Schadler's claim, the administrator must consider facts bearing upon (1) Mr. Schadler's state of mind and intent and (2) his subjective expectations in taking the particular drugs at issue here. In addition, the administrator must "ask whether a reasonable person, with background and characteristics similar to the insured, would have viewed the injury as highly likely to occur as a result of the insured's intentional conduct." Wickman v. Northwestern Nat'l Ins. Co., 908 F.2d 1077, 1088 (1st Cir.1990); see also, Santaella v. Metropolitan Life Ins. Co., 123 F.3d 456, 464-65 (7th Cir.1997) (adopting the Wickman test); Todd v. AIG Life Ins. Co., 47 F.3d 1448, 1456 (5th Cir.1995) (same). As is evident from this discussion, due to the specificity of the factual inquiry demanded by each plan provision, it is imperative that a claimant know at the administrative level which plan provisions have been relied upon in denying the claim and be given a full opportunity at that level to adduce all relevant evidence. 11 In so holding, we do not intend to create a steadfast rule that de novo review is never appropriate where a defendant puts forth a reason for denying benefits for the first time at trial. There may indeed be cases in which such review is appropriate, but this is not one of them. For example, it may be appropriate for a district court to undertake a de novo review of the denial where the administrator, despite repeated opportunities to do so, refuses to make a ruling on an issue or where the administrator so delays making a decision that such delay amounts to a failure to decide the issue. See, e.g., Nelson v. EG & G Energy Measurements Group, Inc., 37 F.3d 1384, 1388-89 (9th Cir.1994) (reviewing a denial of benefits de novo where the entity vested with the discretion to interpret the terms of the plan did not do so, despite repeated requests from the plaintiffs). In this case, however, we face neither of those situations, and we therefore need not decide when, if ever, de novo review would be appropriate despite a plan's grant of discretion to its administrator

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 04-7687 RONNELL A. GREGORY, Petitioner - Appellant, versus GENE M. JOHNSON, Director, Virginia Department of Corrections, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, District Judge. (CA-04-292) Submitted: February 4, 2005 Decided: February 22, 2005 Before MOTZ, TRAXLER, and KING, Circuit Judges. Dismissed by unpublished per curiam opinion. Ronnell A. Gregory, Appellant Pro Se. John H. McLees, Jr., OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Ronnell A. Gregory seeks to appeal the district court’s order denying relief on his petition filed under 28 U.S.C. § 2254 (2000). We have independently reviewed the record and conclude on the reasoning of the district court that Gregory has not made a substantial showing of the denial of a constitutional right. See Gregory v. Johnson, No. CA-04-292 (E.D. Va. Sept. 28, 2004). Accordingly, we deny a certificate of appealability and dismiss the appeal. See 28 U.S.C. § 2253(c) (2000). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED - 2 - 

566 F.3d 1364 (2009) Paul W. HYATT, Claimant-Appellant, v. Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee. No. 2008-7163. United States Court of Appeals, Federal Circuit. May 27, 2009. *1365 Sandra W. Wischow, Goodman, Allen & Filetti, of Richmond, VA, argued for claimant-appellant. Claudia Burke, Senior Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With her on the brief were Jeanne E. Davidson, Director, and Martin F. Hockey, Jr., Assistant Director. Of counsel on the brief were Michael J. Timinski, Deputy Assistant General Counsel, and Martie S. Adelman, Attorney, United States, Office of the General Counsel, Department of Veterans Affairs, of Washington, DC. Before LOURIE, GAJARSA, and PROST, Circuit Judges. PROST, Circuit Judge. Mrs. Julianne Hyatt is the widow of Mr. Paul Hyatt, a veteran who died on August 24, 2007, while his claim for disability compensation was pending. On July 22, 2008, the United States Court of Appeals for Veterans Claims ("Veterans Court") issued an order denying two motions filed by Mrs. Hyatt. The first motion requested that the court substitute her as a party in Mr. Hyatt's case. The second asked the court to give nunc pro tunc effect to the Veterans Court's decision on an appeal taken by Mr. Hyatt for which a decision was issued but judgment was not yet entered prior to his death. Because we conclude that Mrs. Hyatt lacks standing to be substituted as a party, we affirm the Veterans Court's disposition of both motions. I. BACKGROUND Mr. Hyatt served in the United States Marine Corps from December 1958 to September 1962. In 1959, Mr. Hyatt was injured when a member of his military unit negligently struck him in the back with a bayonet during a ceremony at the Tomb of the Unknowns at Arlington National Cemetery. The serviceman responsible for Mr. Hyatt's injury was disciplined by court martial. In 1983, Mr. Hyatt filed a claim for disability compensation for a lower-back *1366 condition, which he alleged resulted from the 1959 bayonet injury. Along with his application, Mr. Hyatt submitted lay statements describing the circumstances surrounding the bayonet incident. The statements disclosed that the serviceman had been court-martialed, but the court martial records were not submitted and the Department of Veterans Affairs ("VA") did not attempt to acquire them. In December 1983, a VA regional office denied his claim and Mr. Hyatt did not appeal. In 1998, the VA reopened Mr. Hyatt's case in response to newly submitted evidence. After his claim was again denied, Mr. Hyatt suggested that the Board of Veterans' Appeals ("Board") retrieve the court martial records. The Board declined to do so. Although the Board found that the 1959 bayonet incident had occurred and that Mr. Hyatt currently suffered from a back disability, it also found that a nexus between the two had not been established because there was "no medical, or consistent lay evidence, of the nature and extent of [the bayonet] wound." Accordingly, the Board denied his claim for service connection. On appeal to the Veterans Court, Mr. Hyatt argued that the VA had failed to satisfy its statutory duty to assist him in obtaining the evidence and information necessary to substantiate his claim. On August 6, 2007, the Veterans Court issued its decision, which reversed the Board's finding that the duty to assist had been satisfied and remanded for further proceedings. The Veterans Court noted the relevance of the court martial records: In significant part, the Board rested its decision that there was no nexus between Mr. Hyatt's current disability and his injury in service on its finding that there was "no medical, or consistent lay evidence, of the nature and extent of" the wound to Mr. Hyatt's back that he suffered in service. Those dealing with veterans' claims should understand that a court-martial involving an injury to another serviceman likely would contain evidence regarding the extent and nature of the injury for purposes of aggravation and mitigation. Hyatt v. Nicholson, 21 Vet.App. 390, 395 (2007) (citation omitted). Because the court martial records were relevant and had been identified to the VA, the Veterans Court found that the VA "had a duty to attempt to secure the court-martial records and, if unsuccessful in doing so, to provide Mr. Hyatt with the specific notice required by section 5103A(a)(2)." Id. The Veterans Court entered its judgment on August 29, 2007. However, it was later notified that Mr. Hyatt had died on August 24, 2007. Mrs. Hyatt filed motions requesting substitution of party and reissuance of the judgment nunc pro tunc as of the date of Mr. Hyatt's death. Mrs. Hyatt hoped that these motions, if successful, would result in the court martial records being treated as part of Mr. Hyatt's file at his date of death, thereby making them available for Mrs. Hyatt's claim for accrued benefits under 38 U.S.C. § 5121. In a July 22, 2008 order, the majority of the Veterans Court, over a dissent, determined that Mrs. Hyatt did not have standing to be substituted as a party and thus could not seek reissuance of the judgment. Hyatt v. Peake, 22 Vet.App. 211 (2008). Accordingly, it withdrew the decision on Mr. Hyatt's appeal and vacated the Board decision with respect to the matters upon which Mr. Hyatt's appeal was based. Id. at 215. Mrs. Hyatt timely appealed. We have jurisdiction under 38 U.S.C. § 7292. II. DISCUSSION On an appeal from the Veterans Court, this court "shall decide all relevant questions of law, including interpreting *1367 constitutional and statutory provisions." 38 U.S.C. § 7292(d)(1). "Our review is limited to questions of law, and it is de novo." Bailey v. West, 160 F.3d 1360, 1362 (Fed.Cir.1998) (en banc) (citations omitted). "[A] veteran's claim to disability compensation ... is terminated by his or her death...." Richard v. West, 161 F.3d 719, 723 (Fed.Cir.1998). However, 38 U.S.C. § 5121(a) provides that specified individuals, including a surviving spouse, may receive the "benefits ... to which [the veteran] was entitled at death under existing ratings or decisions or those based on evidence in the file at date of death ... and due and unpaid." Thus, under the statute, "the [§ 5121] claimant takes the veteran's claims as they stand on the date of death." Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed.Cir.1996). Although an accrued benefits claim brought by a surviving spouse under § 5121 is "derivative of the veteran's claim for service connection," it is nevertheless a separate claim based on a separate statutory entitlement to benefits. Id. at 1241. Additionally, it comes with a separate set of administrative and appellate procedures. Id. at 1243-44. Because an accrued benefits claim is a separate claim with separate procedures that begins where the veteran's claim stood at the date of death, the claimant will often be able to pursue her claim without any need to be substituted as a party in the veteran's case. See id. at 1244. For cases in which the accrued benefits claimant requests substitution, this court has identified a two-part inquiry for deciding if substitution is proper.[1]Padgett v. Nicholson, 473 F.3d 1364, 1370 (Fed.Cir.2007). First, although the Veterans Court is not bound by Article III of the Constitution, it nevertheless requires the claimant to show the presence of a "case or controversy." Id. Second, the claimant "must satisfy the Veterans Court's standing requirement under 38 U.S.C. § 7266(a), which provides that she be `adversely affected' by a decision of the [B]oard." Id. In this case, Mrs. Hyatt seeks to be substituted as a party in Mr. Hyatt's case and to have judgment reissued nunc pro tunc so that she can benefit from the Veterans Court's decision finding a violation of the duty to assist and remanding for the VA to attempt to obtain the court martial records. The majority of the Veterans Court relied on what appear to be two separate grounds to support its conclusion that Mrs. Hyatt lacks standing for substitution. First, it found that substitution was inappropriate because the result of Mr. Hyatt's appeal lacked the type of "continuing relevance" to Mrs. Hyatt's accrued benefits claim that is required by this court's precedent. Specifically, it concluded that the "continuing relevance" requirement was only met in cases in which the judgment sought to be reissued would result in an imminent entitlement to benefits. Second, it found that Mrs. Hyatt would not *1368 be "adversely affected" if the result in Mr. Hyatt's appeal was vacated because even if the decision was to be reissued nunc pro tunc, the court martial records would not be part of the record for Mrs. Hyatt's accrued benefits claim. On appeal, Mrs. Hyatt argues that neither ground is correct. A The first ground of the Veterans Court's decision rests on its interpretation of our decisions in Padgett and Pelea v. Nicholson, 497 F.3d 1290 (Fed.Cir.2007). According to Mrs. Hyatt, the Veterans Court improperly relied on Pelea to justify an incorrect interpretation of the rule set forth in Padgett. The government responds that Padgett is distinguishable and Pelea governs the result in this case. In Padgett, this court addressed a situation in which the Veterans Court, unaware that Mr. Padgett was no longer living, issued a decision that, among other things, reversed a finding by the Board that Mr. Padgett's injury was not service connected. 473 F.3d at 1366-67. By reversing the Board's finding on service connection, the Veterans Court created in Mr. Padgett an entitlement to at least some benefits. Mr. Padgett's surviving spouse, Mrs. Padgett, sought to be substituted. Id. The Veterans Court denied Mrs. Padgett's motion. On appeal, this court reversed, finding that Mrs. Padgett had standing because "but for the nunc pro tunc relief, [the Board's decision, which was reversed by the Veterans Court] would adversely affect her claim in the same way it adversely impacted Padgett's claim at the time he filed his notice of appeal." Id. at 1370. In Pelea, Mrs. Pelea, the surviving spouse of a veteran, died while pursuing her claim for dependency and indemnity compensation. 497 F.3d at 1291-92. Shortly before her death, the Veterans Court vacated a Board decision denying benefits and remanded for determination of whether the VA had properly notified Mrs. Pelea of the evidence necessary to support her claim. Id. at 1292. After her death, her estate moved to be substituted as a party. Id. The Veterans Court denied the motion and her estate appealed. Id. This court affirmed, finding that there was no legal basis for Mrs. Pelea's estate to "continue to press her claim for a benefit she sought but had not yet been awarded before she died." Id. Additionally, the court rejected Mrs. Pelea's reliance on Padgett because while the decision reissued nunc pro tunc in Padgett established Mr. Padgett's entitlement to benefits prior to his death, the Veterans Court's decision vacating the Board's denial of benefits in Mrs. Pelea's case would not entitle [Mrs. Pelea] to any accrued benefits. The Veterans Court held only that the Board should further consider whether the VA had adequately informed her what additional evidence she should submit to support her claim. Under that ruling, she still was a long way from establishing either that her deceased husband had served in the United States military or that his death was connected with such service. Id. at 1293. In Mrs. Hyatt's case, the majority of the Veterans Court distinguished Padgett as involving a "very different posture" than that of Mrs. Hyatt's case. Hyatt v. Peake, 22 Vet.App. at 213. In its view, Mrs. Hyatt's case was not sufficiently analogous to the situation in Padgett because Padgett involved a Veterans Court decision that "effectively granted benefits to Mr. Padgett before his death" while the decision that Mrs. Hyatt seeks to have reissued merely remands Mr. Hyatt's case for further development. Id. at 213-14. Instead, the majority viewed Mrs. Hyatt's position as similar to that of the surviving *1369 spouse's estate in Pelea because she "still was a long way from establishing" entitlement to benefits. Id. at 214. Thus, the majority of the Veterans Court read the combination of Padgett and Pelea to stand for the proposition that an "imminent grant of entitlement to service connection" was required for substitution to be proper. Id. at 213-14. In dissent, Judge Kasold expressed his opinion that the majority's reliance on Pelea was misplaced. Id. at 216 (Kasold, J., dissenting). In his view, the inquiry is not whether there will be an imminent grant of benefits, but whether Mrs. Hyatt is able to show a "personal stake" in having the Veterans Court's judgment in Mr. Hyatt's case reissued nunc pro tunc. Id. at 216 n. 1. If so, he stated, substitution is proper. Id. We agree with the dissent that the question of whether Mrs. Hyatt may be substituted as a party in Mr. Hyatt's case is not fully resolved by the fact that the Veterans Court decision at issue did not decide the ultimate issue of entitlement to benefits. While it is of course true that Padgett involved such a factual scenario, we see no such requirement in the court's reasoning. Rather, in a case such as this where an accrued benefits claimant is seeking to be substituted for the purpose of requesting that a decision be reissued nunc pro tunc, Padgett only requires that the decision have "continuing relevance" such that, but for the nunc pro tunc relief, the accrued benefits claim would be adversely affected. 473 F.3d at 1370. Thus, the accrued benefits claimant need only show that the failure to reissue the decision nunc pro tunc will adversely affect her claim in some way. The rule in Padgett was not changed by Pelea. The portion of Pelea cited by the Veterans Court serves only to describe why Mrs. Pelea's estate could gain nothing by being substituted as a party. Before its discussion of Padgett, the court in Pelea had already concluded that Mrs. Pelea's claim for dependency and indemnity compensation had died with her and could not be pursued by her estate. 497 F.3d at 1292. In contrast to Mrs. Hyatt's right to seek benefits under § 5121, there was no claim that could be brought by the estate in its own right. Therefore, the only possible scenario in which the estate would be entitled to anything was if reissuing the decision nunc pro tunc would result in an award of benefits prior to Mrs. Pelea's death. Because the court found that it would not, the estate had nothing to gain by being substituted. Pelea is thus entirely consistent with Padgett and does not create a blanket rule that an imminent grant of benefits is required before a party can be substituted. Therefore, we conclude that the Veterans Court erred to the extent that it suggested that Mrs. Hyatt lacked standing because the judgment she sought to have reissued would not result in an imminent entitlement to benefits. The proper question is whether her accrued benefits claim would be "adversely affected" if the judgment on Mr. Hyatt's appeal was not reissued nunc pro tunc as of his date of death. With the correct standard identified, we turn to the Veterans Court's second ground for its decision—that reissuing the withdrawn decision would have no effect on Mrs. Hyatt's § 5121 claim. B Mrs. Hyatt alleges that her accrued benefits claim will be "adversely affected" if the Veterans Court's judgment is not reissued nunc pro tunc. This is so, she contends, because her claim must be based on "evidence in the file at date of death." 38 U.S.C. § 5121(a). In her view, if the decision is reissued nunc pro tunc, her chances of receiving benefits under § 5121(a) will be improved because she *1370 will be entitled to rely on the court martial records. However, if the judgment is not reissued, her claim will be limited to the evidence in the file before Mr. Hyatt took his appeal, which the Board previously found insufficient to allow payment of benefits. The government and the majority of the Veterans Court take issue with Mrs. Hyatt's premise that reissuing the judgment would allow consideration of the court martial records as part of her accrued benefits claim. In the majority of the Veterans Court's view, whether the decision is reissued nunc pro tunc is irrelevant to Mrs. Hyatt because her § 5121 claim "is explicitly limited to the evidence `in the file' at the date of the veteran's death—which does not include the court martial records that the Court ordered VA to obtain on remand." Hyatt v. Peake, 22 Vet.App. at 214. We agree. The statute expressly provides that accrued benefits claims are limited to the benefits to which the veteran was "entitled at death under existing ratings or decisions or those based on evidence in the file at date of death ... and due and unpaid." 38 U.S.C. § 5121(a) (emphasis added). By regulation, the VA has interpreted "evidence in the file at date of death" to include "evidence in VA's possession on or before the date of the beneficiary's death, even if such evidence was not physically located in the VA claims folder on or before the date of death." 38 C.F.R. § 3.1000(d)(4). Mrs. Hyatt does not challenge the validity of this regulation, nor does she argue that the VA had actual possession of the court martial records at the time of Mr. Hyatt's death. Instead, she presents several arguments for why the court martial records should nevertheless be treated as part of the file as of Mr. Hyatt's death. First, Mrs. Hyatt suggests that this is a circumstance under which evidence can be submitted after the veteran's death under § 5121(c). That subsection provides: Applications for accrued benefits must be filed within one year after the date of death. If a claimant's application is incomplete at the time it is originally submitted, the Secretary shall notify the claimant of the evidence necessary to complete the application. If such evidence is not received within one year from the date of such notification, no accrued benefits may be paid. 38 U.S.C. § 5121(c) (emphasis added). In Hayes v. Brown, the Veterans Court noted the perceived conflict between subsections (a) and (c) of § 5121. 4 Vet.App. 353, 360 (1993) ("While 38 U.S.C.A. § 5121(a) permits only evidence in the file at date of death, 38 U.S.C.A. § 5121(c) appears to contradict, or at least qualify, that provision...."). However, this confusion was recognized by the VA and clarified by regulation in 2002. See Evidence for Accrued Benefits, 67 Fed.Reg. 9638, 9639 (Mar. 4, 2002); Evidence for Accrued Benefits, 67 Fed.Reg. 65,707 (Oct. 28, 2002); see also 38 C.F.R. § 3.1000(c)(1). By regulation, the evidence admissible under subsection (c) is limited to that necessary to establish that the claimant is within the category of persons eligible to receive accrued benefits under § 5121. 38 C.F.R. § 3.1000(c)(1). Because Mrs. Hyatt does not argue that the court martial records establish her eligibility as a claimant and identifies no reason for us to depart from the VA's regulation, we conclude that § 5121(c) is inapplicable in this case. Next, Mrs. Hyatt refers to several provisions in the VA Adjudication Manual that allegedly support her position. According to Mrs. Hyatt, the Manual provides that certain evidence that is not physically "in the file at date of death" is nevertheless considered when adjudicating § 5121 claims. See VA Adjudication Manual, *1371 M21-1 MR, Part VIII, Ch. 3.1.(f). While Mrs. Hyatt is correct that the evidence need not be physically "in the file," the Manual does require that such evidence be in the VA's possession as of the date of death. Id. This is consistent with the VA's interpretation of "evidence in the file at date of death" codified at 38 C.F.R. § 3.1000(d)(4). As Mrs. Hyatt admits, the court martial records were not in the VA's actual possession when Mr. Hyatt died. Finally, Mrs. Hyatt asks us to find that the court martial records fall within the ambit of "evidence in the file at date of death" because they were in the VA's constructive possession. Mrs. Hyatt argues that a finding of constructive possession is appropriate because the VA's court-ordered task of obtaining the records was entirely ministerial. Further, she suggests that such a rule would yield better results because it would eliminate uncertainty about whether veterans in cases such as this would survive until the VA obtained physical possession of records. For authority, she cites Bell v. Derwinski, 2 Vet.App. 611 (1992), a case in which the Veterans Court held that four documents that were not before the Board were nevertheless part of the record because they were "within the Secretary's control and could reasonably be expected to be a part of the record." 2 Vet.App. at 613. We disagree that the constructive possession theory set forth in Bell should be extended to the facts of this case. First, it appears that the documents at issue in Bell were either in the VA's possession or under its control. Id. at 612-13. Moreover, three of the four documents in Bell "were generated within the VA by its agents or employees" and the fourth "was submitted to the VA by appellant as part of her claim." Id. In this case, the court martial records (assuming they still exist and are obtainable by the VA) were not generated by, submitted to, or otherwise within the VA's possession or control. Further, adopting Mrs. Hyatt's theory of constructive possession would contravene the clear limitation Congress placed on accrued benefits claims in § 5121(a). The authority to enlarge the universe of evidence upon which accrued benefits claimants may rely lies with Congress, not this court. Because the court martial records would not be "evidence in the file at date of death" within the meaning of § 5121(a) even if the Veterans Court reissued its decision on Mr. Hyatt's appeal nunc pro tunc, we conclude that the withdrawal of the Veterans Court's decision in Mr. Hyatt's appeal will not "adversely affect" Mrs. Hyatt. See Padgett, 473 F.3d at 1370. Accordingly, Mrs. Hyatt lacks standing to be substituted as a party. See id. Where substitution is inappropriate, nunc pro tunc relief is also unavailable. Id. ("Because of the general rule that a veteran's claim for benefits ends with his death, if [the accrued benefits claimant] could not be substituted, nunc pro tunc relief would be inappropriate."). III. CONCLUSION For the foregoing reasons, we affirm the Veterans Court's decision denying Mrs. Hyatt's motions for substitution of party and for the judgment in Mr. Hyatt's appeal to be reissued nunc pro tunc as of the date of Mr. Hyatt's death. AFFIRMED NOTES [1] As part of the Veterans' Benefits Improvement Act of 2008, Congress created a new statutory section that addresses substitution. The new provision, codified at 38 U.S.C. § 5121A(a)(1), provides: If a claimant dies while a claim for any benefit under a law administered by the Secretary, or an appeal of a decision with respect to such a claim, is pending, a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title may, not later than one year after the date of the death of such claimant, file a request to be substituted as the claimant for the purposes of processing the claim to completion. However, this provision applies only in cases in which the veteran died after October 10, 2008. Veterans' Benefits Improvement Act of 2008, Pub.L. No. 110-389, 122 Stat. 4145, 4151. Because Mr. Hyatt died in August 2007, it is inapplicable in this case.

739 So.2d 801 (1999) Carla Bolden and Juan BOLDEN v. Heber E. DUNAWAY, Jr. No. 99-C-0275. Supreme Court of Louisiana. March 26, 1999. Denied. TRAYLOR, J. not on panel.

222 P.3d 500 (2010) STATE of Kansas, Appellee, v. Robert L. ROBISON, Jr., Appellant. No. 101,515. Supreme Court of Kansas. January 22, 2010. *502 Matthew J. Edge, of the Kansas Appellate Defender Office, argued the cause and was on the brief for the appellant. Amy L. Aranda, assistant county attorney, argued the cause, and Mark Goodman, county attorney, and Steve Six, attorney general, were with her on the brief for appellee. The opinion of the court was delivered by DAVIS, C.J.: Robert Robison, Jr., pleaded no contest to a charge of aggravated indecent liberties with a child. He was sentenced to life without the possibility of parole for 25 years, with lifetime postrelease supervision. Robison appeals his life sentence. We affirm. FACTS After negotiations between the defendant and the State involving two counts of aggravated indecent liberties with a child, one count was dismissed, and Robison entered his plea of no contest to one count of aggravated indecent liberties with a child in violation of K.S.A. 21-3504(a)(3)(A). His motion for a downward durational departure was denied. He was sentenced to a mandatory life sentence without the possibility of parole for 25 years pursuant to K.S.A. 21-4643, "Jessica's Law," with lifetime postrelease supervision. He made no claim before the trial court that his sentence was unconstitutionally cruel or unusual. He now seeks to have this issue considered on appeal. We decline. The sentence was imposed on Robison, already a registered sex offender, for lewd fondling or touching of D.M.L., a 9-year-old child, on or between August 11, 2007, and November 26, 2007. Evidence had also been presented on a second amended count of aggravated indecent liberties with D.M.L by Robison. That event had occurred after the date of the offense of conviction and was discovered by D.M.L.'s aunt as it was occurring on November 27, 2007. Investigation of that event eventually led to the discovery of the earlier act of conviction. The second count was withdrawn pursuant to negotiations leading to the nolo contendere plea. In addition to his motion requesting a downward durational departure sentence, Robison also presented arguments for departure at his sentencing hearing. The district judge concluded, however, that none of the reasons asserted by Robison were substantial and compelling reasons to depart from the mandatory sentence. The judge also noted Robison's indecent liberties conviction in 2000. Robison appealed his sentence, arguing that the district court erred by denying his motion for a downward durational departure sentence. He also asked that we address his claim that the sentence imposed is cruel or unusual and must be set aside. This court's jurisdiction is under K.S.A. 22-3601(b)(1) (off-grid crime; life sentence). Discussion (1) Whether the mandatory minimum sentence in K.S.A. 21-4643 violates the Eighth Amendment to the United States Constitution and Section 9 of the Bill of Rights of the Kansas Constitution Robison argues his life sentence violates the right against cruel or unusual punishment under Section 9 of the Bill of Rights of the Kansas Constitution, and the prohibition of cruel and unusual punishment under the Eighth Amendment to the United States Constitution. The determination of whether a sentence is a cruel or unusual punishment is controlled by a three-factor test stated in State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978). These factors include both legal and factual inquiries, and no one factor controls. Robison's arguments fail. Recently in State v. Mondragon, 289 Kan. ___, Syl. ¶ 2, 220 P.3d 369 (2009), State v. Thomas, 288 Kan. 157, Syl. ¶ 1, 199 P.3d 1265 (2009), and State v. Ortega-Cadelan, 287 Kan. 157, Syl. ¶ 2, 194 P.3d 1195 (2008), this court held that a defendant's argument that a life sentence imposed under the provisions of K.S.A. 21-4643 is a cruel or unusual punishment cannot be presented for the first time on appeal. Just as in Mondragon, Thomas, and Ortega-Cadelan, Robison made no reference to any constitutional concerns during plea *503 negotiations, in his written motion for downward durational departure, or at his sentencing hearing. Robinson concedes that he advanced his argument for the first time on appeal. Just like the defendant in Thomas, Robison "did not address these factors before the district court, did not present evidence, and did not ask the court to make findings of fact or conclusions of law on the issue. See Dragon v. Vanguard Industries, 282 Kan. 349, 356, 144 P.3d 1279 (2006) (litigant must object to inadequate findings of fact and conclusions of law before the trial court to preserve the issue for appeal); Supreme Court Rule 165 (2008 Kan. Ct. R. Annot. 235)." Thomas, 288 Kan. at 159-60, 199 P.3d 1265. Moreover, just like the Thomas defendant, defendant Robison: "Conceding that he did not make the argument before the district court and recognizing the general rule that constitutional issues cannot be asserted for the first time on appeal, State v. Ortega-Cadelan, 287 Kan. 157, Syl. ¶ 1, 194 P.3d 1195 (2008), [defendant] urges application of one of the exceptions that recognize circumstances when an issue can be advanced for the first time on appeal. The exceptions were identified in Pierce v. Board of County Commissioners, 200 Kan. 74, 80-81, 434 P.2d 858 (1967), and are: (1) The newly asserted claim involves only a question of law arising on proved or admitted facts and is determinative of the case; (2) consideration of the claim is necessary to serve the ends of justice or to prevent the denial of fundamental rights; and (3) the district court is right for the wrong reason. [Defendant] argues that his case falls within the first two Pierce exceptions because the constitutional issue involves a question of law and also relates to a fundamental right." 288 Kan. at 160, 199 P.3d 1265. Robison too, citing State v. Puckett, 230 Kan. 596, 640 P.2d 1198 (1982), argued in his brief that his case falls within the first two Pierce exceptions because the constitutional issue involves a question of law and also relates to a fundamental right. Notwithstanding this argument, Thomas noted: "These same arguments were presented by another defendant and rejected by this court in Ortega-Cadelan, 287 Kan. at 161, 194 P.3d 1195. Ortega-Cadelan pled guilty to one count of rape in violation of K.S.A. 21-3502(a)(2) (sexual intercourse with child under 14 years of age). He was sentenced under the same provision as applied to Thomas ... 21-4643(a)(1), and received a mandatory life sentence without the possibility of parole for 25 years and postrelease supervision for life. Ortega-Cadelan appealed his sentence and argued for the first time on appeal that his sentence constituted cruel or unusual punishment." 288 Kan. at 160-61, 199 P.3d 1265. Thomas concluded: "We declined to consider Ortega-Cadelan's argument that the sentence offended the constitutional prohibition against cruel or unusual punishment. Citing the three-prong Freeman test, we noted the factors include both factual and legal questions. Despite the defendant's attempt to focus on those factors that raised legal questions, we determined the factual aspects of the test could not be ignored because no single consideration controls the issue. As a result, we concluded that the factual aspects of the test must be considered by the district court before the question could be reviewed on appeal and so the issue was not properly before the court. 287 Kan. at 161, 194 P.3d 1195." 288 Kan. at 161, 199 P.3d 1265. We conclude that Mondragon, Thomas, and Ortega-Cadelan control. Robison's "argument that his life sentence pursuant to [K.S.A. 21-4643(a)(1)] is a cruel or unusual punishment, which was ... not argued before the district court, cannot be presented for the first time on appeal." 288 Kan. at 161, 199 P.3d 1265. (2) Whether the district court erred in denying Robison's motion for a downward durational departure sentence Robison claims that the district court erred by denying his request for a downward durational departure sentence. K.S.A. 21-4643(d) *504 provides that the district "judge shall impose the mandatory minimum term of imprisonment provided by subsection (a), unless the judge finds substantial and compelling reasons, following a review of mitigating circumstances, to impose a departure." Standard of Review Contrary to Robison's contention that this issue involves the interpretation of K.S.A. 21-4643(d), calling for an unlimited de novo review, the established standard of review is one of abuse of discretion. See Mondragon, State v. Seward, 289 Kan. 715, 217 P.3d 443 (2009), and Thomas, wherein we stated: "On appellate review of this process, we apply a broad abuse of discretion standard because this issue involves the district court's consideration and weighing of mitigating circumstances. Under this standard `"[j]udicial discretion is abused when no reasonable person would take the view adopted by the district judge."' Ortega-Cadelan, 287 Kan. at 165, 194 P.3d 1195, (quoting State v. Engelhardt, 280 Kan. 113, 144, 119 P.3d 1148 [2005]); see State v. Jones, 283 Kan. 186, 215-16, 151 P.3d 22 (2007) (same broad abuse of discretion standard applies to appellate review of weighing of aggravating and mitigating circumstances before imposing hard 50 sentence)." Thomas, 288 Kan. at 164, 199 P.3d 1265. In his departure motion, Robison asked the district court "to impose a departure sentence" based on four mitigators: (1) Robison's "capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of law was substantially impaired. At the times of the offense Mr. Robison was under the influence of drugs and alcohol." (2) Robison's age was 33 at the time of the crime. (3) Robison "has no significant criminal history. Other than his prior felony conviction for Indecent Liberties with a Child in 2000 Mr. Robison has had only minor misdemeanor offenses in his past." (Emphasis added.) (4) Robison "accepted responsibility for his actions and shows general remorse. Mr. Robison chose to enter a plea in this case and not contest the state[']s evidence at trial." Upon consideration of the four mitigating factors and arguments of counsel, the district court determined that the "mandatory sentence... will apply." The court specifically made "the finding that there are not substantial and compelling reasons to sentence you otherwise." The court directly addressed the "under the influence" mitigator asserted by Robison: "[W]hile there may have been some mention regarding alcohol or some other substance being used this evening I do not believe that it is sufficient to grant the departure as requested. Even if there was some consumption on your part that ... is a voluntary act and you should be held responsible for your actions." The court later noted Robison's indecent liberties conviction in 2000 and explicitly found that none of the reasons asserted by Robison presented a substantial and compelling reason to depart. In Thomas, we said that "the statutory language regarding the consideration of mitigating circumstances is `clear and unambiguous, stating the judge shall impose a life sentence "unless the judge finds substantial and compelling reasons, following a review of mitigating circumstances, to impose a departure."' Ortega-Cadelan, 287 Kan. at 164, 194 P.3d 1195 (quoting [K.S.A. 21-4643(d)]) .... [A] two-step procedure applies: First, the judge reviews mitigating circumstances and, second, the judge determines if there are substantial and compelling reasons for a departure. 287 Kan. at 164, 194 P.3d 1195. .... "A review of the sentencing transcript convinces us that the district court considered all of Thomas' arguments, acknowledged the mitigating circumstances asserted by Thomas, and explained why it chose to reject the request for a downward durational or dispositional departure. Reasonable *505 people could agree with the district court's assessment of whether the mitigating circumstances were substantial and compelling. "The district court did not abuse its discretion by denying Thomas' motion for a downward durational or dispositional departure sentence under K.S.A.2006 Supp. 21-4643(d)." Thomas, 288 Kan. at 163-64, 199 P.3d 1265. Just as in Thomas, the district court followed the two-step procedure by considering the mitigating circumstances and by its determination that they were not substantial and compelling reasons for a departure. Reasonable people could agree with the district court's assessment that the mitigating circumstances were not substantial and compelling. Here, as in Seward, 289 Kan. at ___, 217 P.3d 443, the defendant "demonstrated no abuse of discretion in the district judge's denial of its departure motion" for a downward durational departure sentence. Affirmed.

214 F.2d 534 ADAMS et al.v.RAILROAD RETIREMENT BOARD. No. 13719. United States Court of Appeals Ninth Circuit. June 29, 1954. Clarence D. Phillips, H. H. Phillips, Phillips, Coughlin, Buell & Phillips, Portland, Or., for petitioners. Myles F. Gibbons, Gen. Counsel, Railroad Retirement Board, Chicago, Ill., David B. Schreiber, Associate General Counsel, Louis Turner, Asst. Gen. Counsel, Chicago, Ill., and Ben Diamond, Chicago, Ill., on the brief, for respondent. Before HEALY, BONE and POPE, Circuit Judges. POPE, Circuit Judge. 1 Portland Electric Power Company, here called Power, for many years prior to 1930, operated an electric generation and transmission business, city traction lines, and an interurban railway line. In 1930, Portland General Electric Company, here called Electric, was organized as a wholly owned subsidiary of Power and all the electric utility properties and operations of Power were transferred to it. Two years later the city traction lines were turned over to Portland Traction Company, here called Traction, also a wholly owned subsidiary of Power. 2 From August 29, 1935, when the Railroad Retirement Act of 1935, 49 Stat. 967-973, was passed, until August 29, 1946,1 Power was an "employer" under the Railroad Retirement Act.2 This was because of its operation of the interurban line which had physical connections and exchanged service with certain steam railroads. Petitioners, 88 in number out of a group of 600 persons similarly situated, are employees or former employees on the payroll of Electric. They asserted in the proceeding in which the Board's decision was rendered, that they were employees of Power and "employees" under the Act.3 This claim was predicated upon the fact that after Electric was formed and began operating in 1930, these petitioners, although receiving their pay checks from Electric, actually performed many services for Power. The general character of these services is mentioned hereafter. 3 In such cases the greater portion of the time of each petitioner was devoted to similar work for Electric. But such services were always available to Power, which thus was relieved of the necessity of having this type of work done by men on its own payroll. 4 In addition, petitioners say, they performed these duties under the direction of Power, and subject to its continuing authority.4 To illustrate their point in this regard petitioners describe the situation of one of them, a Mr. Robertson, who performed work in preparing payrolls of Power. He reported to a general auditor who in turn reported to a president. But the auditor and the president occupied dual positions in that each was an officer and held the named position with both Electric and Power. Thus it is stated that at the important date in 1935, hereafter mentioned, Mr. Robertson was under the supervision of the general auditor of Power who was supervised by the president of Power. Petitioners say that this demonstrates that Robertson was subject to the continuing authority of Power which could supervise and direct the manner of rendition of his service notwithstanding the men from whom he took his orders were also the auditor and the president of Electric. 5 The record also shows that although Mr. Robertson received his pay by means of a check drawn on the account of Electric, on whose payroll he was carried, yet Electric then charged to Power a sum of money representing the portion of his salary attributable to the work he did for Power. 6 Petitioners say that the facts with respect to Robertson's employment are fairly representative of the manner in which the other petitioners were employed and compensated, and we do not understand that this is controverted by the respondent Board. Petitioners say that notwithstanding they were admittedly in the employ of Electric, yet they were also employed by Power, that is, they were employed by both Electric and Power, and subject to an authority which was exercised as the composite joint act of both companies. 7 Attention is called to the fact that Power owned Electric, the officers of Power and Electric were the same, and all occupied the same building. It is said that in general all decisions, those of Electric, Power and Traction, after the separation of the original enterprise in 1930 and in 1932, were executed in a manner not distinguishable from the way in which they were carried out prior to that time; — the only difference say the petitioners is that the top executive was president of the three different companies instead of one and that the same situation related to the chain of command all the way down to the petitioners who did the actual work under those commands. 8 If petitioners are right in their contention, the consequences with respect to a petitioner who was an "employee" on August 29, 1935, is that he may receive credit toward an annuity under the Act for services rendered to an "employer" before as well as after January 1, 1937.5 9 Not long after the enactment of the 1937 Act Power made inquiry as to its status and that of its employees with respect to this question and advised its employees that only those on its own payroll were covered. Therefore for several years Power's compensation reports to the Board were limited to such employees. In 1942, the Commissioner of Internal Revenue, in dealing with the duty to pay taxes under the Carriers Taxing Act, 50 Stat. 437, made a ruling in line with the present position of these petitioners. During the same year the Board's general counsel made a similar ruling, holding that an employee on the payroll of Electric was also an employee of Power with respect to a portion of his services and compensation.6 Thereafter taxes computed under the Carriers Taxing Act were paid, in line with such opinions, upon "the portion of such employees' remuneration which was attributable to services performed for [Power]". During the period from 1942 to 1949 annuities were granted and certified to 54 of the petitioners.7 Thus Mr. Robertson, before mentioned, retired in 1946 and the Board issued to him a certificate stating that he would be entitled to an annuity under the Act for the rest of his life. However, in 1950, the Board's general counsel changed his views expressed in the earlier ruling, and now gave it as his opinion that some 600 individuals who had been carried on the payroll of Electric, including the present 88 petitioners, were not employees of Power. The individuals, who had earlier been granted annuities, were then notified of their cancellation although recovery of benefits previously paid was waived. Petitioners applied to the Board for an order which in effect would reverse this later ruling and hold them employees entitled to benefits under the Act. The Board found against them, and they now seek review in this court. 10 The adverse decision of the Board is predicated primarily upon the terms and provisions of a so-called "inter-company agreement" dated September 1, 1932 between Electric, Power, Traction and the Willamette Valley Railway Company. The portions thereof set forth in the Board's findings are copied in the margin.8 11 The existence of this agreement, the Board found, did not come to the attention of counsel for the Board when he made his first ruling that the employees of Electric in the position of petitioners were also employees of Power and entitled to benefits under the Act. This agreement, the Board held, demonstrates that the services of employees supplied by Electric to Power were not performed as a part of a joint operation of the two companies, but pursuant to Electric's undertaking to furnish those services to Power as a part of Electric's own operation. The position of the Board is that this agreement of September 1, 1932 is proof that petitioners were exclusively the employees of Electric. 12 Petitioners argue that the Board has given an improper interpretation to this inter-company memorandum. They say that it is wholly unrealistic to give controlling significance to a memorandum executed between corporations one of whom is the master and the other the creature, — this especially in view of the evidence that the written memorandum was executed primarily to satisfy certain requirements of the Public Utilities Commissioner of the State of Oregon. 13 For reasons which will appear hereafter we do not deem it necessary to express any opinion as to whether the Board has rightly interpreted that written agreement, particularly in view of the deference which this court is wont to give to findings of fact made by administrative boards when reviewed by this court.9 14 During the consideration of this matter counsel for the parties filed additional briefs dealing with some questions which this court propounded to them.10 It will be noted that these questions are prompted by that portion of § 228a of Title 45 which reads as follows: "The term `employer' means any carrier (as defined in subsection (m) of this section), and any company which is directly or indirectly owned or controlled by one or more such carriers or under common control therewith, and which operates any equipment or facility or performs any service (except trucking service, casual service, and the casual operation of equipment or facilities) in connection with the transportation of passengers or property by railroad, or the receipt, delivery, elevation, transfer in transit, refrigeration or icing, storage, or handling of property transported by railroad, * * *." The problem is whether the 88 petitioners, although on the payroll of Electric, are not nevertheless employees within the meaning of the Act by reason of the fact that Electric is at least with respect to its employment of these particular employees itself an employer within the meaning of the Act because it is a "company which is directly or indirectly owned or controlled by one * * * such carriers * * * and which operates any equipment or facility or performs any service (except trucking service, casual service, and the casual operation of equipment or facilities) in connection with the transportation of passengers or property by railroad". 15 Petitioners answer this inquiry with an emphatic "Yes". The respondent Board says that petitioners cannot be brought within the Act by treating Electric as an employer within the quoted language for several reasons. In the first place, it says, the carrier service performed by Electric was mere "casual" service within the excepting clause; secondly, those services on the part of Electric were inconsequential and so minor when compared with the total business and total payroll of Portland General Electric Company that they cannot be deemed anything other than casual services within the meaning of that excepting clause. Thus it is pointed out that Electric's total revenue from the sale of electrical energies in each of the years 1937-38-39, exceeded nine million dollars and its payroll exceeded two million six hundred thousand dollars. These figures are contrasted with the total charges for labor rendered by Electric to Power in those same years, which were respectively $24,737, $24,172 and $18,608. 16 Section 202.6 of the Board's Regulations undertakes to define the term "casual" service and the "casual" operation of equipment or facilities. The first portion of that definition, which is given in the margin,11 is a fair statement of the usual or common meaning of the term "casual". However, it does not appear from the record here that the services rendered by Electric to Power through these petitioner employees was either irregular or infrequent. On the contrary the inference here must be that such service or operation would be repeated, for Power was unable with the employees on its own payroll to perform these functions. 17 While the amount of labor charge mentioned above was small when compared to the total payroll of Electric itself, it does not appear that those charges were relatively so small when compared to the total labor cost of Power. It is Power's costs which are significant here and not those of Electric, which was primarily engaged in a different enterprise. Judged in relation to Power's labor cost it cannot be said that the labor thus charged by Electric to Power was inconsequential even if it be assumed that the idea of "insubstantial" could properly be added to the Board's definition of "casual" service. We think that the footnote on page 452 of 326 U.S., on page 241 of 66 S.Ct. (Railroad Retirement Board v. Duquesne Warehouse Co.), furnishes an illustration of what was intended to be comprehended within the term "casual" service. The illustration there supplied is that of employees of a contractor "occasionally employed by a `carrier' to repair a depot or build a bridge." 18 The respondent Board next argues that to hold that Electric was an employer within the quoted language would accomplish an absurdity in that the result would be that Electric would have to be treated as an employer under the Railroad Retirement Act as to all its operations and that in consequence all its employees would be covered. 19 The Board itself has dealt with this situation in its rule 202.9. (Title 20, C.F.R.).12 This deals with the company, like Electric, which is owned or controlled by a carrier and which performs a service in connection with the transportation of passengers or property by railroad although the company itself is principally engaged in some other business.13 In such a case the Board is charged with securing information which will permit it to determine whether the company as a whole shall be dealt with as an employer or whether some identifiable and separable enterprise conducted by that company is to be considered to be the employer. 20 It is thus clear that the Board's rules are such that when it confronts a situation of the kind here presented, of a controlled company performing some limited service in connection with the transportation by railroad, and where the main or principal business of the controlled company is "some other business", the Board may separate the services or operations connected with transportation from the other business of the controlled company and treat the former separated enterprise as alone constituting the employer for the purposes of the Act. It is noteworthy that the rule does not contemplate simply disregarding in its entirely a controlled company of that character. The rule contemplates that either the company in its entirety or some identifiable and separable enterprise conducted by it shall be brought within the comprehension of the Act. 21 The fact that we do have here a controlled corporation, the major part of whose business has nothing to do with the transportation of passengers or property by railroad, distinguishes the case of course from Despatch Shops v. Railroad Retirement Board, 80 U.S.App.D.C. 374, 153 F.2d 644, and Despatch Shops v. Railroad Retirement Board, 2 Cir., 154 F.2d 417. But in those cases both courts emphasize the practical reason why it was necessary that the term employer be extended to cover the wholly owned corporation which performed those services for the railroad. We think that a complete disregard of the function of a wholly owned corporation like Electric which performed some transportation services as here, merely because its major enterprise is another business, would be to provide a loophole for evasion which it was not the congressional intent to permit. What was said in the Despatch Shops cases, supra, is not without cogency here. Both courts said (one quoting from the other): "`If Despatch, in this situation, is not an "employer" under the terms of the Act, it can be readily seen that the railroads would be free to take from under the Act virtually all of their workers whose employment is in the "supporting" activities, through the simple expedient of setting up wholly owned corporate affiliates to perform these services. It is conceivable that everything from maintenance-of-way through engineering or bookkeeping might be done by so called "independent" corporations. The application of this Act and of the other Acts passed for similar purposes and embodying the same language could be so severely limited as to render them of little worth in achieving the purposes for which they were passed.'" 154 F.2d 419. 22 We have here "some identifiable and separable enterprise" carried on by Electric having to do with the performing of a service or the operating of equipment in connection with the transportation of passengers or property by railroad. Plainly enough the enterprise here is not as readily identifiable as if Electric had maintained a separate railroad department. But it is not questioned that Electric, during the period here in question, did in fact operate equipment and facilities and performed services "in connection with the transportation of passengers or property by railroad." Nor is there any serious question as to what those operations and services were. 23 Power had on its own payroll the men who operated the Electric locomotives to haul the trains, but a large number of other services and operations, without which no carrier could be expected to operate, were handled by crews and employees on Electric's payroll. These were the men who maintained and repaired the overhead trolleys, the electric lines, and performed other necessary electric work to keep the trains running. They were men who supplied engine and equipment repairs; who furnished the customary engineering and right of way services for the railroad. The carrier could not operate without accounting services, the services of a purchasing department, or a department which cared for poles and their replacement in the overhead trolley system. The carrier could not operate without correspondence and stenographic service. It required bridge and building services, a safety engineer, and repairs for its automotive equipment and its general rolling stock. 24 We hold that in furnishing these and similar services Electric was an employer within the meaning of the Act and its employees performing these services were employees. 25 We think that it cannot be denied at this stage that the arrangement by which these various services were provided for constitute an "identifiable and separable enterprise" which was carried on by Electric. The Board experienced no difficulty in identifying the 54 of these 88 petitioners to whom awards were previously made.14 26 We hold that as to those 54 petitioners the services performed by them while on Electric's payroll represented an identifiable and separable enterprise to be considered to be that of an employer within the meaning of the Act. 27 As for the remainder of the 88 petitioners now before us, the matter must be remanded to the Board with directions that the Board ascertain from the record now before it, or such additional evidence as may be produced, which of them are entitled under the rules here stated to be adjudged "employees". We perceive no reason for applying to their cases any more rigid standards of proof than those which the Board has itself heretofore applied with respect to the 54 petitioners to whom such awards were previously made. 28 The decision of the Board with respect to such 54 petitioners is reversed and the awards of retirement benefits previously made to said petitioners are ordered reinstated. 29 The decision with respect to the remainder of the petitioners before us is reversed and the cause is remanded to the Board for further hearing and other proceedings not inconsistent with the foregoing opinion. Notes: 1 This was the date on which the interurban line of Power was sold to others pursuant to certain Chapter X proceedings under the Bankruptcy Act 2 The 1935 Act was amended by the Act of June 24, 1937, c. 382, Part I, 50 Stat. 307. The Railroad Retirement Act of 1937 appears at Title 45 U.S.C.A. §§ 228a-228y 3 § 228a(b) provides: "The term `employee' means (1) any individual in the service of one or more employers for compensation, * * *." As all connection between Electric and Power terminated shortly after 1946 (see note 1, supra), the claims here involved are limited to service in periods prior to 1946. 4 § 228a(c) provides: "An individual is in the service of an employer * * * if (i) he is subject to the continuing authority of the employer to supervise and direct the manner of rendition of his service * * * and (ii) he renders such service for compensation. * * *" 5 45 U.S.C.A. § 228a(f) 6 The ruling was: "It is, therefore, my opinion that Mr. A. H. Morris was an employee of the Portland Electric Power Company while rendering service for it from 1924 to at least March 1, 1939 and his service for that company during this period and the compensation therefor are creditable toward an annuity." (See Ex. 98, p. 1309 R.) 7 The respondent Board refers to these as 47 to whom annuities were awarded and seven whose husbands were awarded annuities 8 "Whereas, it is necessary and convenient for some one of said parties to furnish personal service, materials and/or supplies to some one or more of the other parties hereto; and "Whereas, it is necessary and convenient that the parties hereto enter into this agreement covering said inter-company practices and relations; * * * * * * "9. Storeroom Service: The Electric Company will purchase, store and issue any and all materials and supplies required by the Pacific Company [Power], the Traction Company and/or the [Willamette Valley] Railway Company which would ordinarily be handled through store room accounts, and the said Pacific Company, Traction Company and/or Railway Company will each pay to the electric Company for the materials and/or supplies furnished to it, a price which shall be calculated at actual cost to the Electric Company, plus the actual expense incident to handling such materials and supplies through the store room. "10. General Clause: It is recognized that it is impossible to cover specifically every item of service between the parties hereto which may arise during the term hereof, and the parties by this agreement have only attempted to specifically cover the major items of inter-company operations, leaving the other items of service to be covered under the agreements of this paragraph; accordingly, it is agreed by the parties hereto that when any materials, supplies, office equipment, telephone service and/or personal service, and/or any other service, shall be furnished by one party hereto to any other party hereunder at the request of such other party, or with the express or implied consent of such other party, then the party using such material, supplies and/or service shall pay to the party furnishing the same the actual cost thereof, or the reasonable value thereof in case the actual cost thereof cannot be reasonably determined, and in the case of any joint user by two or more of the parties hereto, then the expense thereof shall be assumed by the parties using the same upon an allocation of the said actual cost or said reasonable value, based upon the proportional extent of the use of each party. "11. Term: The term of this agreement shall * * * automatically continue from month to month * * *, provided, however, that any party hereto may withdraw from this agreement and terminate this agreement as to it * * * by giving each of the other parties hereto thirty (30) days' written notice. * * *" 9 Another interesting question which, although probably one of law, we also find it unnecessary to resolve, is whether under the circumstances the Board, after first awarding 54 of the petitioners annuities (which awards apparently became final), could withdraw such awards. The annuities under the Act are not gratuities. They are matters of right. The written contract upon which the Board now acts was in existence when the awards were adjudicated and the Board's failure previously to take the contract into consideration was caused neither by fraud nor concealment. We do not here feel called upon to express any opinion as to whether the principles which have led to the rules of res adjudicata and of estoppel by judgment in respect to controversies traditionally heard in courts should have equal force in respect to administrative adjudications of the character here involved. Of course no unsuccessful litigant in an ordinary law suit would think that after the time for motions for a new trial and for appeal had expired he could obtain a new ruling contrary to the former one merely by showing that some previously existing fact was not produced at the trial. Concepts of an orderly society require that at some time a period be put to such controversies. See Butte, A. & P. Ry. Co. v. U. S., 290 U.S. 127, 135, 54 S.Ct. 108, 78 L.Ed. 222; United States v. Great Northern Ry. Co., 287 U.S. 144, 151, 53 S.Ct. 28, 77 L.Ed. 223; Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 402-404, 60 S.Ct. 907, 84 L.Ed. 1263; cf. Davis on Administrative Law, (1951), § 172 10 Those additional questions as submitted by the court were as follows: "1. During the period here in question were the services furnished by Portland General Electric Company, or some of them, `services in connection with the transportation of passengers or property by railroad', within the meaning of § 228a of Title 45? See Railroad [Retirement] Board v. Duquesne [Warehouse] Co., 326 U.S. 446 [66 S.Ct. 238, 90 L. Ed. 192]; Despatch Shops v. Railroad Retirement Board, [80 U.S.App.D.C. 374], 153 F.2d 644; Despatch Shops v. Railroad Retirement Board, 2 Cir., 154 F.2d 417; and Spencer v. Railroad Retirement Board, 3 Cir., 166 F.2d 342. "2. Could it be said that any of such services are `inherent or vital to the sustained functioning of a railroad system', as in the case of the repair and construction of rolling stock (Despatch Shops cases), or the supplying of water (Spencer case)? "3. If the preceding questions are answered in the affirmative, would Portland General Electric Company then be an `employer' under the Act? "4. Is the scope of our review, as defined in Title 5, § 1009, and Title 45, § 355(f), such that we may consider whether the Board should have examined and determined the foregoing questions?" 11 Title 20, Code of Federal Regulations, § 202.6: "Casual service and the casual operation of equipment or facilities. The service rendered or the operation of equipment or facilities by a controlled company or person in connection with the transportation of passengers or property by railroad, is `casual' whenever such service or operation is so irregular or infrequent as to afford no substantial basis for an inference that such service or operation will be repeated, or whenever such service or operation is insubstantial." 12 The rule making power of the Board is stated in Title 45, § 228j 13 "§ 202.9 Controlled company or person not principally engaged in service or operation in connection with railroad transportation. (a) With respect to any company or person owned or controlled by one or more carriers or under common control therewith, performing a service or operating equipment in connection with the transportation of passengers or property by railroad, or the receipt, delivery, elevation, transfer in transit, refrigeration or icing, storage, or handling of property transported by railroad, but which is principally engaged in some other business, the Board will require the submission of information pertaining to the history and all operations of such company or person with a view to determining whether it is an employer or whether some identifiable and separable enterprise conducted by the person or company is to be considered to be the employer, and will make a determination in the light of considerations such as the following: (1) The primary purpose of the company or person on and since the date it was established; (2) The functional dominance or subservience of its business which constitutes a service or operation of equipment or facilities in connection with the transportation of passengers or property by railroad in relation to its other business; (3) The amount of its business which constitutes a service or operation of equipment or facilities in connection with the transportation of passengers or property by railroad and the ratio of such business to its entire business; (4) Whether such service or operation is a separate and distinct enterprise; (5) Whether such service or operation is more than casual, as that term is defined in § 202.6. (b) In the event that the employer is found to be an aggregate of persons or legal entities or less than the whole of a legal entity or a person operating in only one of several capacities, then the unit or units competent to assume legal obligations shall be responsible for the discharge of the duties of the employer." 14 These awards were made by the Bureau of Retirement Claims which under the Board's Rule 260.1 (of Title 20, C.F.R.) was its adjudicating unit

601 F.Supp. 132 (1985) Katherine RIZZO, Plaintiff, v. WGN CONTINENTAL BROADCASTING COMPANY, Defendant. No. 84 C 4458. United States District Court, N.D. Illinois, E.D. January 11, 1985. Sheila M. Murphy, Chicago, Ill., for plaintiff. Richard L. Marcus, William J. Campbell, Jr., Steven L. Loren, Chicago, Ill., for defendant. MEMORANDUM OPINION AND ORDER NORDBERG, District Judge. This matter comes before the Court on the defendant, WGN Continental Broadcasting Company's ("WGN") motion to dismiss plaintiff's Amended Complaint. The plaintiff, Katherine Rizzo, originally filed a four count complaint against WGN which was dismissed. Plaintiff was granted leave to file an Amended Complaint consisting of two counts. (See minute order of October 25, 1984). Count I alleges age discrimination and Count II alleges sex discrimination. Defendant's motion to dismiss *133 Rizzo's sex discrimination claim, renewed as to the Amended Complaint, is hereby granted in accordance with the following order. Rizzo's E.E.O.C. Complaint Plaintiff Katherine Rizzo is a former employee of WGN. She began working for WGN in 1950 and was employed there until February 25, 1983. Rizzo claims that she was forced to stop working for WGN as a result of WGN's "Early Retirement Program" (Program). It is Rizzo's position that WGN's Program discriminated against her on the basis of her age. On April 27, 1983, Rizzo filed a charge of age discrimination with the E.E.O.C. Rizzo's E.E.O.C. charge indicated that February 25, 1983 was the most recent date that age discrimination took place. Subsequently, on October 11, 1983, Rizzo amended her E.E.O.C. charge to include an allegation that WGN discriminated against her on the basis of her sex. The E.E.O.C. investigated both of Rizzo's claims and, finding no reasonable cause to believe Rizzo's charge to be true, issued her a "right to sue" notice. After receiving her right to sue notice, Rizzo filed a four-count complaint in federal district court, subsequently amended to a two-count complaint. In addition to her age discrimination claim, Count II of Rizzo's Amended Complaint alleged that WGN discriminated against her on the basis of her sex, causing her to suffer severe emotional distress. WGN has moved to dismiss Count II of Rizzo's Amended Complaint. WGN contends that Rizzo is barred from raising her Title VII sex discrimination claim because she did not file a timely E.E.O.C. charge. Under 42 U.S.C. § 2000e-5(e), a plaintiff must file a charge with the E.E.O.C. within 180 days of the last act of discrimination. WGN contends that since February 25, 1983 was the date on which the last discriminatory act took place, and since Rizzo amended her E.E.O.C. charge on October 11, 1983, Rizzo failed to file her sex discrimination charge within 180 days. As a result, WGN argues that Rizzo's sex discrimination claim is barred. Rizzo, on the other hand, claims that her failure to include a sex discrimination in her original April 27 E.E.O.C. charge is the result of a mere technical mistake. Rizzo contends that she simply failed to "check the appropriate box." Consequently, Rizzo asserts that her sex discrimination claim should be allowed to stand. The Motion to Dismiss In considering WGN's motion to dismiss, the court's inquiry is whether Rizzo's complaint sets forth allegations sufficient to make out the elements of a right to relief. Austin v. Merrill Lynch, Pierce, Fenner & Smith, 570 F.Supp. 667, 668 (W.D.Mich. 1983). The Court must accept as true all material facts well-pleaded in the complaint, and must make all reasonable inferences in the light most favorable to the plaintiff. Schnell v. City of Chicago, 407 F.2d 1084, 1086 (7th Cir.1969). Because the Court finds that Rizzo's claim is barred by Title VII's limitation period, dismissal of her sex discrimination claim is proper. The Procedural Prerequisites to Filing a Title VII claim in Federal Court A plaintiff who wishes to file a Title VII claim in federal court must first comply with the procedural scheme set forth in the statute. Federal courts have jurisdiction over Title VII claims only if a timely charge is first filed with the E.E. O.C. Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974); McDonnell Douglas Corporation v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 1822, 36 L.Ed.2d 668 (1973). Section 2000e-5(e) provides: "A charge under this section shall be filed within 180 days after the alleged unlawful employment practice occurred...." Thus, the express wording of the statute dictates that a plaintiff is required, prior to instituting suit in federal court, to file a change with the E.E.O.C. within 180 days after the act of discrimination took place. *134 In addition, however, the E.E.O.C. regulations provide that a plaintiff's E.E.O.C. charge may be amended to include additional allegations after the running of the 180 day limitation period. 29 C.F.R. § 1601.12(b) states: A charge may be amended to cure technical defects or omissions, including failure to verify the charge, or to clarify and amplify allegations made therein. Such amendments and amendments alleging additional acts which constitute unlawful employment practices related to or growing out of the subject matter of the original charge will relate back to the date the charge was first received. A charge that has been so amended shall not be required to be redeferred. (emphasis supplied). 29 C.F.R. § 1601.12(b) (1984). Thus, Rizzo's October 11, 1983 amendment will be judged against the wording of the regulation above and the federal courts' interpretation and application of that regulation. Federal courts interpreting 29 C.F.R. § 1601.12(b) acknowledge that E.E.O.C. charges are generally filed by ordinary people who lack legal training. These courts have often held that because E.E. O.C. charges are in laymen's language, they are to be given liberal construction. Jenkins v. Blue Cross Mutual Hospital Insurance, Inc., 538 F.2d 164, 167 (7th Cir.1976); Abraham v. Field Enterprises, 511 F.Supp. 91, 93 (N.D.Ill.1980). These courts reason that a layman should not be precluded from having his or her day in court simply because he or she is unable to specifically articulate the type of discrimination he has suffered. Jenkins, 538 F.2d 164, 167, 168 (7th Cir.1976); Willis v. Chicago Extruded Metals Co., 375 F.Supp. 362, 365 (N.D.Ill.1974). The Seventh Circuit, following the Fifth Circuit's lead, has enunciated the standard which this Court is to apply in determining whether an untimely amendment of an E.E.O.C. complaint may relate back: The correct rule to follow in construing E.E.O.C. charges for purposes of delineating the proper scope of a subsequent judicial inquiry is that "the complaint in the civil action ... may properly encompass any ... discrimination like or reasonably related to the allegations of the charge and growing out of such allegations." Jenkins, 538 F.2d at 167, citing Danner v. Phillips Petroleum Company, 447 F.2d 159, 162 (5th Cir.1971). Thus, Rizzo's October 11, 1983 amendment can relate back to her initial April 27, 1983 charge only if her sex discrimination charge "is like or reasonably related" to the allegations contained in her initial April 27, 1983 charge. Rizzo's April 27 E.E.O.C. charge contains facts and allegations describing how she was discriminated against on the basis of her age. For example, paragraph III of Rizzo's charge states: "I believe that I have been discriminated against because of my age 59...." In the paragraphs following, Rizzo alleges that she was forced to partake in WGN's "mandatory" retirement program and that she was subsequently replaced by a younger employee who was in his "early 30's". In her complaint, Rizzo refers to a "younger employee," the "early retirement" program and how each individual involved was younger than she. Rizzo underscores and sums up the basis of her claim in paragraph IV: I believe that the above named Respondent, (WGN), is discriminating against employees, 55 and older, as a class by forcing early retirement upon them, and if it is not accepted they are demoted and harassed. However, while Rizzo has alleged facts sufficient to state a cause of action in age discrimination, nowhere in her April 27 charge is there any reference to facts indicating that WGN sexually discriminated against her. Indeed, every paragraph of Rizzo's April 17 charge contains allegations directed solely towards WGN's "mandatory" early retirement program. Rizzo's complaint fails to allude to any act of WGN from which sexually discriminatory conduct may be inferred. Under such circumstances, this Court finds that Rizzo's October 11 *135 Amendment, adding a sex discrimination charge, fails to be "like or reasonably related to," Jenkins, 538 F.2d 164, 167 (7th Cir.1976), the allegations contained in her April 27 E.E.O.C. charge. In reaching this conclusion, the court does not rely on Rizzo's failure to mark the box for "sex" discrimination on the E.E. O.C. form. Rather, the court relies on Rizzo's entire complaint including the factual allegations in the charge. Accord Carrillo v. Illinois Bell Telephone Company, 538 F.Supp. 793, 798 (N.D.Ill.1982). Rizzo's E.E.O.C. charge is simply unlike the charge discussed in Jenkins. In Jenkins the court found that the plaintiff's timely E.E.O.C. charge alleged facts sufficient to charge sex discrimination. 538 F.2d at 169. In the instant case, however, plaintiff's charge alleges no facts indicating she was complaining about sex discrimination. Therefore, because Rizzo's untimely amendment fails to fit within the exception outlined by the applicable E.E.O.C. regulations, her sex discrimination charge is barred. Conclusion For the reasons set forth above, WGN's motion to Dismiss Count II of Rizzo's complaint is granted.

969 F.2d 373 23 Fed.R.Serv.3d 391 Carol TSO, individually and as administratrix of the estateof Terry Tso, deceased, Ngan Tso, Andrew Tso, etal., Plaintiffs-Appellants,v.John A. DELANEY, Walworth County, Wisconsin, Benjamin J.Coopman, Jr., et al., Defendants-Appellees. No. 91-2928. United States Court of Appeals,Seventh Circuit. Argued March 3, 1992.Decided July 22, 1992. Vicki L. Arrowood, Kasdorf, Lewis & Swietlik, Janice A. Rhodes (argued), Milwaukee, Wis., Mark V. Ferrante, Chicago, Ill., J. Ric Gass, Kravit, Gass & Weber, Milwaukee, Wis., for plaintiffs-appellants Carol Tso, Ngan Tso, Andrew Tso, Jamie Choi and Yuen L. Leung. Mark A. Grady, Donald M. Lieb (argued), Otjen, Vanert, Stangle, Lieb & Weir, Milwaukee, Wis., for defendants-appellees John A. Delaney, Walworth County, Wis., Benjamin J. Coopman, Jr., William Wilson and James Johnson. Before CUMMINGS, CUDAHY and COFFEY, Circuit Judges. CUDAHY, Circuit Judge. 1 Terry Tso was killed when his car collided with a county truck engaged in repair operations on a public highway. Members of Tso's family sued Walworth County and four of its employees for negligence in the operation and supervision of the truck. The Tsos' lawyer failed, however, to make proper service of process on the defendants within the required time period. We must decide in this appeal whether good cause exists to excuse that failure. We are also called upon to interpret a provision of Wisconsin law that permits recovery for injuries caused by the negligent operation of a motor vehicle. We affirm in part and reverse in part. I. 2 Terry Tso's accident occurred on December 20, 1988. His wife, children and other family members, all Illinois residents, commenced this action on November 13, 1989, approximately one month before the statute of limitations was to expire. See Wis.Stat. § 893.80(1)(b). Initially named as defendants were Walworth County, John Delaney (the operator of the Walworth County truck) and the State of Wisconsin.1 Three days later, the Tsos' attorney, Mark V. Ferrante, attempted to effect service on Delaney and Walworth County by sending them copies of the summons and complaint by certified mail. Neither mailing included any copies of the acknowledgment form specified in Fed.R.Civ.P. 4(c)(2)(C)(ii) or a self-addressed, stamped envelope. 3 On November 29, 1989, the County defendants filed their answer, raising insufficiency of service of process as an affirmative defense. The grounds for their objection--that a county cannot be served by mail and that mail service must include acknowledgment forms and return envelopes--were provided to the plaintiffs' counsel in a telephone conversation with the defendants' counsel on December 5, 1989. Following the telephone call, the Tsos' attorney mailed acknowledgment forms to each of the County defendants and to their attorney, but did not send return envelopes. Neither Delaney nor Walworth County returned the form. On March 14, 1990, after the 120-day time limit for service had passed, Delaney and Walworth County moved to dismiss for insufficiency of service of process. The plaintiffs then sought an extension of time in which to effectuate service. 4 The district judge issued three relevant rulings. First, on April 24, 1990, he issued a brief order granting an extension of time in which to effect personal service and denying the County defendants' motion to dismiss as moot.2 Second, approximately two months later, on June 29, 1990, he decided to "reconsider whether [he had] properly granted plaintiffs an extension of time in which to effectuate service," and reinstated the defendants' motion to dismiss.3 Finally, approximately a year later, on June 7, 1991, he vacated his earlier order granting an extension of time and granted the County defendants' motion to dismiss for insufficient service, concluding that the plaintiffs had not demonstrated good cause for their failure to make proper service within the required time period. 5 Meanwhile, new claims and new parties had been added in amendments to the Tsos' complaint. In July 1990, the plaintiffs added allegations of willful and wanton actions on the part of Delaney and Walworth County. In August 1990, the plaintiffs added as defendants three Walworth County employees, Benjamin J. Coopman, William Wilson and James Johnson, alleging that these defendants had inadequately instructed and supervised Delaney on highway maintenance procedures. (We refer to the latter three defendants as the Supervisory defendants, and to Delaney and Walworth County as the County defendants.) II. 6 It is undisputed that service of process was not properly made on the County defendants within the initial 120-day period established by Federal Rule of Civil Procedure 4(j). Rule 4(j) requires dismissal in such a case unless the plaintiff can show "good cause" why service was not made within the 120-day period.4 Service on the County defendants was inadequate because it did not comply with the requirements of Rule 4(c): the acknowledgment forms, which were eventually mailed to the defendants, were never returned (and, in addition, had not been accompanied by return envelopes in the first place).5 Service by mail (which has been authorized only since 1983) is not complete unless the acknowledgment form is returned by the defendant. Adatsi v. Mathur, 934 F.2d 910, 911-12 (7th Cir.1991).6 7 We must decide whether the district court erred in finding that the plaintiffs failed to show "good cause" to excuse their failure to make timely service. Our review is quite limited: we will not overturn such a decision unless the district court abused its discretion. Floyd v. United States, 900 F.2d 1045, 1046 (7th Cir.1990); Geiger v. Allen, 850 F.2d 330, 333 (7th Cir.1988). 8 We cannot say that the district court abused its discretion. Rule 4(j) ensures some flexibility in a determination of good cause, and the range of factors that may be considered by the district judge is not rigidly cabined. One thing that is clear from the cases, however, is that simple attorney neglect, without more, cannot serve as the basis for a finding of good cause under Rule 4(j). Floyd, 900 F.2d at 1047; Powell v. Starwalt, 866 F.2d 964, 965 (7th Cir.1989); Geiger, 850 F.2d at 333. Here we have attorney neglect, accompanied by nothing on the order of the "substantial extenuating factors such as sudden illness or natural disaster" suggested in Floyd, 900 F.2d at 1047. 9 The Tsos argue that their attorney exercised diligence and had a reasonable belief that he had met the service requirements of Rule 4. The attorney was on notice by November 29, 1989, when the County defendants filed their answer, that sufficiency of process was at issue. Even after the December 5 telephone call, more than a month remained to correct the deficiency.7 Yet the Tsos' attorney never received the acknowledgment forms from the defendants, never attempted personal service and thus failed to make proper service. The plain language of the mail service rule (Rule 4(c)(2)(C)(ii)) insists that the acknowledgment form be returned; indeed, it goes further, requiring that, if the form is not returned within 20 days, service "shall be made" by other means. The plaintiffs' strongest argument is that the courts have not been completely consistent in holding that service is incomplete until the acknowledgment form has been returned. They rely heavily on the Second Circuit's decision in Morse v. Elmira Country Club, 752 F.2d 35, 39-42 (2d Cir.1984), in which the court held that mail service can be valid when it is received, even though the defendant fails to return the acknowledgment form. Every other circuit to rule on the issue has rejected the Morse rule. Media Duplication Services, Ltd. v. HDG Software, Inc., 928 F.2d 1228, 1233-34 (1st Cir.1991); Green v. Humphrey Elevator & Truck Co., 816 F.2d 877, 879-80 (3d Cir.1987); Armco, Inc. v. Penrod-Stauffer Bldg. Systems, Inc., 733 F.2d 1087, 1089 (4th Cir.1984); Norlock v. City of Garland, 768 F.2d 654, 657 (5th Cir.1985); Friedman v. Estate of Presser, 929 F.2d 1151, 1156 (6th Cir.1991); Gulley v. Mayo Foundation, 886 F.2d 161, 165 (8th Cir.1989); Worrell v. B.F. Goodrich Co., 845 F.2d 840, 841-42 (9th Cir.1988), cert. denied, 491 U.S. 907, 109 S.Ct. 3191, 105 L.Ed.2d 699 (1989); Schnabel v. Wells, 922 F.2d 726, 728 (11th Cir.1991); Combs v. Nick Garin Trucking, 825 F.2d 437, 447-48 (D.C.Cir.1987). This Court explicitly rejected Morse last year, characterizing it as an "outlier." Adatsi, 934 F.2d at 911. The Tsos argue, however, that since Adatsi was not decided until after they attempted service, the issue was open in this circuit. But there is no indication that the plaintiff's attorney had read Morse, or indeed had done any but the most minimal research into Rule 4's requirements. We think that, Morse notwithstanding, the language of Rule 4(c)(2)(C)(ii) itself would have led a reasonably diligent attorney to effectuate service by some other means after no acknowledgment had been returned by the defendant. Moreover, if the plaintiffs' attorney had merely consulted the Practice Commentary in the United States Code Annotated, he would have discovered that this circuit actually addressed the issue in 1987, when we decided Del Raine v. Carlson, 826 F.2d 698, 705 (7th Cir.1987) ("as [plaintiff's] counsel should have known service by mail is not complete until acknowledged"), and again in 1988, when we decided Geiger, 850 F.2d at 332 n. 3 ("The rule in this and other circuits is that service by mail is not complete until an acknowledgment is filed with the court."). 10 The Tsos also point to a number of other factors as establishing good cause, including the fact that dismissal is fatal to the action because the statute of limitations has run; that the defendants have suffered no prejudice; and that the plaintiffs have pursued the litigation for a year in reliance on the judge's initial extension of time for service. As for the first two factors--prejudice to the plaintiffs and lack of prejudice to the defendants--while we cannot say that such considerations are irrelevant to a good cause determination, they cannot by themselves provide good cause for the failure to make service within the 120-day period. See Floyd, 900 F.2d at 1048; Powell, 866 F.2d at 965-66. These considerations have to do with the gravity and equity of a dismissal for improper service, but they do not go toward an explanation for the failure--within the 120-day period--to achieve proper service. At the very least they would have to be accompanied by some showing of reasonable diligence in attempting to comply with the rules. 11 Finally, the Tsos argue that developments in the litigation during the year leading up to the district court's dismissal should play a role in the good cause determination. After the district court extended the time for service in April 1990, the plaintiffs added new claims and new parties in reliance on the court's extension. In particular, the Tsos added claims for wanton and willful conduct against the County defendants in July 1990. But since the district judge essentially changed his mind in June 1991, more than a year after he had granted the extension of time, the plaintiffs lost the opportunity to file those additional claims as a separate suit; by the time the judge had vacated his earlier extension of time for service, the statute of limitations had run on the new claims.8 This argument has a certain appeal, but it conveniently leaves out an important point. The period during which the plaintiffs reasonably relied on the district court's extension of time could not have been an entire year, but only two months, because the court in June 1990 ruled that it was going to reconsider the extension and reinstated the defendants' motion to dismiss. Therefore, while the court did not actually rule until a year later, the plaintiffs were put on notice that the service issue was up in the air in June 1990, which was before the running of the Tsos' asserted limitations period on the new claims. In any event, these subsequent events in the litigation do not reveal any event during the 120-day period that could be said to excuse the failure to effectuate proper service, and some such showing is generally required under Rule 4(j). See Geiger, 850 F.2d at 334. 12 The district judge acted within his discretion in finding that the plaintiffs did not show good cause for their failure to make proper service. III. 13 The district court granted the Supervisory defendants' motion to dismiss for lack of subject matter jurisdiction.9 In a diversity action, the amount in controversy must exceed $50,000, exclusive of interest and costs. 28 U.S.C. § 1332(a). Under Wisconsin law, however, the maximum amount generally recoverable in a tort action against a municipality or its employees is $50,000.10 An exception provides a greater limit--$250,000--for "damage proximately resulting from the negligent operation of a motor vehicle owned and operated by a municipality...."11 The district court held that the exception did not apply and that Wisconsin's $50,000 limit therefore precluded subject matter jurisdiction. 14 The district court relied on Hamed v. County of Milwaukee, 108 Wis.2d 257, 321 N.W.2d 199 (1982), which involved a pedestrian who was injured when hit by a jelly bean that had been fired from a school bus window by a 13-year-old passenger. A jury found the county negligent in supervising the passengers on the bus. The Wisconsin Supreme Court considered § 345.05 (which at the time did not limit damages) and concluded that the phrase "operation of a motor vehicle" is limited to "activities which involve the mechanical functioning of a motor vehicle" and not the "collateral use" of a vehicle. Id. at 277, 321 N.W.2d at 210. The court declined to apply § 345.05 because "the negligent supervision of passengers on a bus is not an activity which involves the mechanical functioning of a motor vehicle." Id. at 277-78, 321 N.W.2d at 210. 15 We disagree with the district judge's conclusion that Hamed controls the present action. There is a superficial similarity to Hamed since both cases involve claims for inadequate supervision. But § 345.05 says only that the injury (i.e., "damage") must result from the negligent operation of a motor vehicle, not that the particular breach of duty sued upon must itself be negligent operation of a motor vehicle. Thus, the Wisconsin Supreme Court has explained that § 345.05 "is applicable when the injury can be traced to incidents of vehicle operation on the highway rather than any collateral use such as loading." Rabe v. Outagamie County, 72 Wis.2d 492, 497, 241 N.W.2d 428, 431 (1976); accord Hamed, 108 Wis.2d at 277-78, 321 N.W.2d at 210. In Hamed and Rabe, § 345.05 did not apply because the injuries did not stem from the operation of motor vehicles at all, but from other sorts of negligent acts that happened to involve motor vehicles in some "collateral use." In the instant case, there is no question that the injury, as alleged, stems from the negligent operation of a motor vehicle. The Tsos' claims involve precisely the manner of operation and the location of the County truck with which Terry Tso's car collided; the fact that the Supervisory defendants themselves were not operating the motor vehicle does not change the fact that the plaintiffs' injury proximately resulted from the negligent operation of a motor vehicle. The more directly applicable authority appears to be Schroeder v. Chapman, 4 Wis.2d 285, 90 N.W.2d 579 (1958), in which the court held that the failure to warn and the blocking of a highway with a county vehicle came within the identical "operation of a motor vehicle" provision that preceded § 345.05. The court found that the county had violated that provision because of its inadequate warning on the highway, even though the act of warning itself would not literally have involved the mechanical operation of a motor vehicle. Id. at 293-94, 90 N.W.2d at 584-85. 16 We think that the $250,000 ceiling of Wis.Stat. § 345.05 applies to the claims against the Supervisory defendants. Those claims therefore should not have been dismissed for lack of subject matter jurisdiction.12 IV. 17 The district court's dismissal of the action as to defendants Delaney and Walworth County for insufficiency of service of process is AFFIRMED. The district court's dismissal of the action as to defendants Coopman, Wilson and Johnson for lack of subject matter jurisdiction is REVERSED and the cause is REMANDED for further proceedings consistent with this opinion. 1 The claims against the State of Wisconsin and three of its employees who were later added as defendants, James Peterson, Edgar McCarthy and Ralph Beiermeister, are not at issue in this appeal. The State defendants did not challenge service below. Because the claims against the State defendants had not been disposed of when appeal was taken, the district court properly directed entry of judgment as to the County defendants pursuant to Fed.R.Civ.P. 54(b) 2 Personal service was made on Delaney and Walworth County on May 2, 1990, after the district judge had granted the extension of time 3 The district judge reconsidered his earlier decision after the defendants requested that he certify an appeal to this Court 4 Fed.R.Civ.P. 4(j) provides in relevant part: If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court's own initiative with notice to such party or upon motion. 5 Fed.R.Civ.P. 4(c)(2)(C)(ii) authorizes service of process on individuals and domestic and foreign corporations by mailing a copy of the summons and of the complaint (by first-class mail, postage prepaid) to the person to be served, together with two copies of a notice and acknowledgment conforming substantially to form 18-A and a return envelope, postage prepaid, addressed to the sender. If no acknowledgment of service under this subdivision of this rule is received by the sender within 20 days after the date of mailing, service of such summons and complaint shall be made under subparagraph (A) or (B) of this paragraph in the manner prescribed by subdivision (d)(1) or (d)(3). 6 The plaintiffs also concede that Walworth County is not an entity that could be served by mail under Rule 4, providing an additional reason that service was improper as to the County 7 While the 120-day requirement of Rule 4(j) gave the plaintiffs until March 13, 1990 to serve the defendants, Wisconsin law gave them only 60 days after filing the complaint to effectuate service. See Wis.Stat. § 893.02. In a diversity action, the issue of when an action is "commenced" is governed by state law. Walker v. Armco Steel Corp., 446 U.S. 740, 752-53, 100 S.Ct. 1978, 1986, 64 L.Ed.2d 659 (1980). In order to survive the statute of limitations, therefore, the plaintiffs were actually required to make proper service on or before January 12, 1990 8 The Tsos assert that a two-year statute of limitations is applicable to the "wanton and willful" claims under Wis.Stat. § 893.57, so that the limitations period would have run in December 1990 9 The Supervisory defendants, Coopman, Wilson and Johnson, had been added in the second amendment to the complaint and were properly served 10 Wis.Stat. § 893.80(3) provides in relevant part: The amount recoverable by any person for any damages, injuries or death in any action founded on tort against any ... political corporation, governmental subdivision or agency thereof and against their officers, officials, agents or employes for acts done in their official capacity or in the course of their agency or employment, whether proceeded against jointly or severally, shall not exceed $50,000.... No punitive damages may be allowed or recoverable in any such action under this subsection. 11 Wis.Stat. § 345.05 provides in part: (2) A person suffering any damage proximately resulting from the negligent operation of a motor vehicle owned and operated by a municipality, which damage was occasioned by the operation of the motor vehicle in the course of its business, may file a claim for damages against the municipality concerned and the governing body thereof may allow, compromise, settle and pay the claim.... (3) A claim under this section shall be filed in the manner, form and place specified in § 893.80. The limitations under § 893.80(3) are applicable to a claim under this section, except that the amount recoverable by any person for any damages, injuries or death in any action shall not exceed $250,000. 12 The defendants offer additional grounds for affirming the district court's dismissal of the claims against the Supervisory defendants. These other issues are best resolved after full presentation in and consideration by the district court

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-7922 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. DONIKKI HARDY, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Spartanburg. Henry M. Herlong, Jr., Senior District Judge. (7:01-cr-00235-HMH-1) Submitted: April 14, 2016 Decided: April 22, 2016 Before WILKINSON and DIAZ, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Donikki Hardy, Appellant Pro Se. Carrie Fisher Sherard, Assistant United States Attorney, Greenville, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Donikki Hardy appeals from the district court’s orders denying his Fed. R. Crim. P. 36 motion and his motion for reconsideration. Hardy sought to delete information from his presentence report (“PSR”) that had been expunged by the state court. Because the relief he seeks is not available by way of Rule 36, we affirm. Rule 36 provides that “[a]fter giving any notice it considers appropriate, the court may at any time correct a clerical error in a judgment, order, or other part of the record, or correct an error in the record arising from oversight or omission.” The Advisory Committee Notes to Rule 36 point out that Rule 36 is similar to Fed. R. Civ. P. 60(a), which provides for the correction of clerical mistakes in civil orders. The Ninth Circuit explained the type of clerical mistakes that may be corrected under Rule 60(a) as follows: The basic distinction between “clerical mistakes” and mistakes that cannot be corrected pursuant to Rule 60(a) is that the former consist of “blunders in execution” whereas the latter consist of instances where the court changes its mind, either because it made a legal or factual mistake in making its original determination, or because on second thought it has decided to exercise its discretion in a matter different from the way it was exercised in the original determination. Blanton v. Angelone, 813 F.2d 1574, 1577 n.2 (9th Cir. 1987) (citation omitted). 2  Here, the PSR was not incorrect when issued, and in fact is not currently incorrect. Hardy does not submit that the challenged information was included by mistake and does not assert that it is false or that he should have been sentenced differently. Instead, he seeks to alter the PSR based on a later state order that does not even purport to apply to federal documents. Because the relief sought by Hardy does not consist of a “blunder in execution,” the district court cannot provide relief under Rule 36. * Accordingly, we affirm. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED *Hardy’s conclusory allegations regarding the prejudice to him are matters which require factual development and administrative exhaustion within the Bureau of Prisons. Depending on the actual harm, his remedy may lie under 28 U.S.C. § 2241 (2012), or Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). 3 

759 N.E.2d 138 (2001) 325 Ill. App.3d 544 259 Ill.Dec. 658 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Milos MANDIC, Defendant-Appellant. No. 2-00-1240. Appellate Court of Illinois, Second District. October 31, 2001. *140 Milos Mandic, Cary, Pro Se. Michael J. Waller, Lake County State's Attorney, Waukegan, Martin P. Moltz, Deputy Director, Sally A. Swiss, State's Attorneys Appellate Prosecutor, Elgin, for the People. Presiding Justice HUTCHINSON delivered the opinion of the court: Following a bench trial, defendant, Milos Mandic, was found guilty of violation of an order of protection (720 ILCS 5/12-30 (West 2000)) and sentenced to 12 months' *141 supervision. Defendant timely appeals, contending the State failed to prove him guilty beyond a reasonable doubt. Defendant argues that (1) the State failed to prove that he did not have a right to be present at the church where he allegedly violated the stay-away provision of the order by contacting his children, and (2) the State failed to prove he acted intentionally because the trial court improperly applied an unstated mandatory presumption that any contact with a protected person constituted a criminal violation. We affirm. When a defendant challenges the sufficiency of the evidence, the same standard of review applies to both jury trials and bench trials. People v. Patterson, 314 Ill.App.3d 962, 969, 248 Ill.Dec. 534, 734 N.E.2d 462 (2000). The applicable standard is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of a crime beyond a reasonable doubt. Patterson, 314 Ill.App.3d at 968-69, 248 Ill.Dec. 534, 734 N.E.2d 462, citing People v. Collins, 106 Ill.2d 237, 261, 87 Ill.Dec. 910, 478 N.E.2d 267 (1985). In a bench trial, the court is presumed to know the law, and this presumption may only be rebutted when the record affirmatively shows otherwise. People v. Kelley, 304 Ill.App.3d 628, 639, 237 Ill.Dec. 740, 710 N.E.2d 163 (1999). "The trier of fact in a bench trial is not required to mention everything—or, for that matter, anything—that contributed to its verdict." People v. Curtis, 296 Ill.App.3d 991, 1000, 231 Ill.Dec. 380, 696 N.E.2d 372 (1998). If the record contains facts that support the trial court's finding, the reviewing court may consider those facts to affirm the finding, even if the trial court did not state specifically that it relied on them. Curtis, 296 Ill.App.3d at 1000, 231 Ill.Dec. 380, 696 N.E.2d 372. The common law recognized that a crime required both actus reus, a guilty act, and mens rea, a guilty mind, and, with the exception of certain absolute liability offenses, the Criminal Code of 1961 (the Criminal Code) (720 ILCS 5/1-1 et seq. (West 2000)) retains this distinction. Compare 720 ILCS 5/4-1 (West 2000) ("Voluntary Act") with 720 ILCS 5/4-3 (West 2000) ("Mental State"). In this case the State was required to prove that defendant (1) committed an act prohibited by an order of protection, or failed to commit an act ordered by an order of protection, and (2) he had been served notice of or otherwise acquired actual knowledge of the contents of the order. (720 ILCS 5/12-30(a) (West 2000)). At trial defendant stipulated that at the time of the alleged violation a valid order of protection was in effect that required him to stay away from his ex-wife and their children. On appeal defendant concedes the validity of the order. Initially we wish to clarify that, although defendant raises the issue obliquely in his brief, freedom of religion (see U.S. Const., amend I; Ill. Const.1970, art. I, § 3) is not an issue in this case. The trial court did not construe the order of protection to prohibit defendant from exercising the religion of his choice or prohibit defendant from entering any specific place of worship. The analysis applied by the trial court, and our own, applies equally to a church, shopping center, sports arena, library, or any other place generally open to the public. Defendant argues that the State failed to prove that he did not have a right to be present in the church or the church social hall. However, the State was not required to prove that defendant was present in the church unlawfully. Section 214(b)(3) of the Illinois Domestic Violence Act of 1986 (the Act) allows a trial court to: *142 "Order respondent to stay away from petitioner or any other person protected by the order of protection, or prohibit respondent from entering or remaining present at * * * specified places at times when petitioner is present, or both, if reasonable, given the balance of hardships. Hardships need not be balanced for the court to enter a stay away order or prohibit entry if respondent has no right to enter the premises." (Emphasis added.) 750 ILCS 60/214(b)(3) (West 2000). In the present case, the order of protection contained only a general stay-away provision and did not prohibit defendant from entering or remaining at any specific location. There is no evidence that defendant argued that the stay-away provision would impose a hardship on him by limiting his right to enter the church. However, even if he had asserted that right, defendant's right to be present is not a defense to a violation of the admittedly valid order of protection; it is just one of many factors that the court that entered the order would have been required to consider before granting relief. See 750 ILCS 60/214(c)(2) (West 2000). Therefore, the issue is not whether defendant had a right to be in the church; the issue is whether a trier of fact could conclude that by exercising that right defendant violated the provision requiring him to stay away from his children. See People v. Zamudio, 293 Ill. App.3d 976, 983, 228 Ill.Dec. 382, 689 N.E.2d 254 (1997) (considering a constitutional right-to-travel challenge to the "following" element of a conviction for stalking). Defendant argues that the trial court presumed that all contact constituted a violation of the stay-away order and thereby violated his right to be presumed innocent. Although defendant devotes a significant portion of his brief to knocking down this straw man, we find no factual basis for this argument in the record. Instead, we find that the trial court's comments reveal that it considered a variety of factors, including defendant's right to visit the church, his knowledge that the children would be present, and whether defendant had an opportunity to avoid an encounter with his children. Therefore, we conclude that the trial court did not apply a mandatory presumption but, rather, fulfilled its duty to construe the undefined phrase "stay away" in light of its ordinary and popularly understood meaning and the facts of this case. See People v. Stork, 305 Ill.App.3d 714, 723, 238 Ill.Dec. 941, 713 N.E.2d 187 (1999). Defendant also argues that the trial court improperly held that the State was not required to prove intent. During the trial defendant asked a witness whether defendant had expressed his intent to see his ex-wife prior to arriving at the church, and the State objected. The trial court's comments in response to that objection did suggest that defendant's intent was irrelevant. However, motive is irrelevant, and the State was not required to prove that defendant went to the church because he wanted to see his children or that the encounter was the result of a preconceived plan. See People v. Gee, 276 Ill.App.3d 198, 201, 213 Ill.Dec. 38, 658 N.E.2d 508 (1995). Viewed in context, it appears the trial court's comments regarding "intent" were actually intended to address the question of motive. Moreover, in response to defendant's posttrial motion, the trial court clearly stated that it had found beyond a reasonable doubt that defendant acted intentionally and any failure to mention intent when announcing its original finding of guilt was inadvertent. Therefore, we find that the trial court did not improperly treat defendant's conduct as a strict liability offense. *143 Although we are aware of no case law interpreting the phrase "stay away," we find the case law interpreting the "following" element of stalking instructive. See People v. Bailey, 167 Ill.2d 210, 229, 212 Ill.Dec. 608, 657 N.E.2d 953 (1995). We determine that, like "following," a violation of a stay-away order does not encompass aimless, unintentional, or accidental conduct. See Bailey, 167 Ill.2d at 229, 212 Ill.Dec. 608, 657 N.E.2d 953. The term "stay away" implies proximity in time and space. Whether a defendant who is otherwise lawfully present in a public place comes within sufficient proximity of a protected person who is also present there to constitute a violation of a stay-away order will depend on a variety of factors. See Bailey, 167 Ill.2d at 229, 212 Ill.Dec. 608, 657 N.E.2d 953. A court should consider factors including, but not limited to, the size of the public area, the total number of people present, the defendant's purpose for being present, the length of time, and when the defendant knew or should have known that a protected party would be present. Conversely, no examination of these factors is required if the order of protection prohibits a defendant from "entering or remaining" in a particular place because the court issuing the order has already defined the area from which the defendant is excluded. In practice, the line between a defendant's conduct, actus reus, and mental state, mens rea, does not retain its theoretical brightness. See People v. Holt, 271 Ill.App.3d 1016, 208 Ill.Dec. 515, 649 N.E.2d 571 (1995). In Holt, the defendant was charged with stalking because, inter alia, he observed the victim through a window at an ice rink during her private practice time prior to the start of a public skating period. Holt, 271 Ill.App.3d at 1024, 208 Ill.Dec. 515, 649 N.E.2d 571. The reviewing court held that the trial court could infer that the defendant's otherwise lawful conduct was without lawful justification because he was present with the intent to stalk the victim. Holt, 271 Ill.App.3d at 1025, 208 Ill.Dec. 515, 649 N.E.2d 571. However, the same conduct at the ice rink constituted part of the surrounding facts and circumstances from which the trial court could infer that the defendant acted knowingly. Holt, 271 Ill. App.3d at 1025, 1029, 208 Ill.Dec. 515, 649 N.E.2d 571. Admittedly, this case presents an intriguing factual base. If defendant was present at a well-attended mass in a large cathedral and remained at a distance from the protected persons, it might not constitute a violation of a stay-away order. On the other hand, similar conduct might constitute a violation at a sparsely-attended religious ceremony in a small chapel if defendant sat in a pew immediately behind a protected person. However, we need not consider defendant's mere presence at the church in greater detail because the trial court declined to base its finding solely on that presence at the worship service and instead found that defendant had physical contact with his children. The surrounding facts and circumstances support the trial court's finding that defendant acted intentionally. Defendant voluntarily entered the church after he was told that his ex-wife and children were expected to attend services that morning. Defendant voluntarily remained in the church sanctuary after he saw that his children were present. Defendant voluntarily entered the church social hall after the service. An attorney, who represented defendant's ex-wife, warned defendant that he considered his conduct a violation of the order of protection and would file a complaint if he remained in the social hall. Nevertheless, defendant voluntarily remained in the social *144 hall until the children were released from Sunday school and entered the social hall. The parties presented conflicting testimony regarding whether the children ran to their father voluntarily or were led to him by defendant's mother. However, defendant ultimately came into contact with his children and, according to the testimony of various witnesses, hugged and kissed them. We determine, as the trial court did, that it is irrelevant whether defendant, acting alone or in concert with his mother, caused the children to come to him or they came to him of their own accord. The Criminal Code of 1961 (720 ILCS 5/1-1 et seq. (West 2000)) has eliminated the distinction between "omission" and "act." See 720 ILCS 5/4-1 (West 2000); People v. Caruso, 119 Ill.2d 376, 383, 116 Ill.Dec. 548, 519 N.E.2d 440 (1987). Or to adopt defendant's terminology, sometimes "the act of not leaving is the same as not staying away." Even if the children voluntarily approached defendant, this was not an aimless, unintentional, or accidental violation of the stay-away order. See Bailey, 167 Ill.2d at 229, 212 Ill.Dec. 608, 657 N.E.2d 953. Defendant created the conditions that allowed the children to approach him through a series of intentional, affirmative acts. Although under different circumstances defendant's conduct in entering and remaining in the church may have by itself constituted a violation of the order of protection, we have instead highlighted that conduct here as part of the circumstances from which the trial court could infer defendant's intent. See Holt, 271 Ill.App.3d at 1029, 208 Ill.Dec. 515, 649 N.E.2d 571. We determine that the trial court could rationally conclude that defendant intentionally violated the order of protection by creating the conditions that led to contact in violation of the stay-away portion of that order. The judgment of the circuit court of Lake County is affirmed. Affirmed. McLAREN and BOWMAN, JJ., concur.

172 N.J. Super. 406 (1980) 412 A.2d 461 IN THE MATTER OF COUNTY OF MERCER, APPELLANT, v. MERCER COUNTY SUPERINTENDENT OF ELECTIONS AND MERCER COUNCIL # 4, NEW JERSEY CIVIL SERVICE ASSOCIATION, RESPONDENTS. Superior Court of New Jersey, Appellate Division. Argued January 8, 1980. Decided February 28, 1980. *407 Before Judges CRANE, MILMED and KING. Linda Feinberg argued the cause for appellant (Harvey L. Stern, Mercer County Counsel, attorney). Janice S. Mironov, Deputy Attorney General, argued the cause for respondent Mercer County Superintendent of Elections (John J. Degnan, Attorney General, attorney; Stephen Skillman, Assistant Attorney General, of counsel). *408 Richard H. Greenstein argued the cause for respondent Mercer Council # 4, New Jersey Civil Service Association (Fox and Fox, attorneys). James F. Schwerin, Deputy General Counsel, argued the cause for Public Employment Relations Commission (Sidney H. Lehmann, General Counsel, attorney). The opinion of the court was delivered by CRANE, P.J.A.D. Mercer County appeals from a final administrative determination of the Public Employment Relations Commission affirming a decision of the Director of Representation holding, pursuant to N.J.S.A. 34:13A-6, that the Superintendent of Elections rather than the county was the employer of the personnel in his office for the purposes of collective negotiation. The county urges on this appeal that under the provisions of the Optional County Charter Law, N.J.S.A. 40:41A 1 et seq., it is the employer of the employees serving under the Superintendent of Elections. In support of its position the county points to the fact that the employees are paid by the county, they perform their duties in facilities provided by the county, they use supplies furnished by the county and their personnel records are kept under centralized procedures applicable to county employees generally. The county argues that it was the intent of the Legislature in adopting the Charter Law to vest centralized control of county government in a chief executive and an elected board of chosen freeholders. The county acknowledges that N.J.S.A. 19:32-27 empowers the Superintendent to appoint the employees and fix their salaries but contends that provision has been impliedly repealed by N.J.S.A. 40:41A 26(c) and that by virtue of the Mercer County Administrative Code the County Executive has been designated as the individual to conduct collective negotiations with employee groups, subject to approval and acceptance by the freeholders. For good measure, the county contends, without citation of any authority, that to *409 permit a nonelected official to enter into a binding agreement which would obligate the taxpayers to carry additional financial burdens would be a deprivation of the republican form of government guaranteed by the United States Constitution. We find no merit in any of the county's contentions. It is undoubtedly true that the goal of the Charter Law is to give counties greater control over their own internal situations and fiscal affairs. N.J.S.A. 40:41A 26. But the Charter Law was not intended to infringe on the powers and duties of other units of government established under the general laws of the State. N.J.S.A. 40:41A 28. Thus, counties do not have control over the salaries of probation officers, In re Salaries Probation Officers Hudson Cty., 158 N.J. Super. 363 (App. Div. 1978), certif. den. 78 N.J. 339 (1978), or the fiscal affairs of county colleges and vocational schools, Mercer Cty. Commun. College Bd. Trustees v. Sypek, 160 N.J. Super. 452 (App.Div. 1978), certif. den. 78 N.J. 327 (1978). The office of County Superintendent of Elections has repeatedly been held to be a state rather than a county office. Meredith v. Mercer Cty. Bd. of Chosen Freeholders, 117 N.J. Super. 379, 385 (Law Div. 1970), aff'd 117 N.J. Super. 368 (App.Div. 1971), aff'd 59 N.J. 530 (1971); Keenan v. Essex Cty. Bd. of Chosen Freeholders, 101 N.J. Super. 495 (Law Div. 1968), aff'd 106 N.J. Super. 312 (App.Div. 1969); McDonald v. Bd. of Chosen Freeholders, 99 N.J.L. 393 (E. & A. 1924). Moreover, the employees of the Superintendent's office have been generally regarded as state employees. MacPhail v. Hudson Cty. Bd. of Chosen Freeholders, 6 N.J. Super. 613 (Law Div. 1950). We reject the suggestion of the county that the appointment and salary provisions of N.J.S.A. 19:31 2 and 19:32-27 are impliedly repealed by N.J.S.A. 40:41A 26(c). In enacting legislation the Legislature is presumed to be familiar with its own prior enactments. Brewer v. Porch, 53 N.J. 167, 174 (1969). The intention to repeal a prior statute must be manifest and the language of the repealing statute must be such that it permits *410 no other reasonable interpretation, since repeals by implication are not favored. State v. States, 44 N.J. 285, 291 (1965). We find no legislative intent in N.J.S.A. 40:41A 26(c) to repeal or modify the provisions of N.J.S.A. 19:31 2 or N.J.S.A. 19:32 27. Nor do we perceive any relationship whatsoever between the determination that the Superintendent of Elections is the appropriate officer to engage in collective negotiations with his employees and the constitutional guaranty of a republican form of government. Essentially such a question is a political rather than a justiciable question. Ohio ex rel. Bryant v. Akron Metrop. Pk. Dist., 281 U.S. 74, 50 S.Ct. 228, 74 L.Ed. 710 (1930). We attach no importance to the fact that the county maintains the personnel records of the employees, nor is the fact that the county pays the salaries determinative of the identity of the employer. See In re Brennan, 126 N.J. Super. 368 (App. Div. 1974). The determination made by the Director and affirmed by the Commission was based on traditional indicia of employer control and status and is entitled to our respect and affirmance unless shown to be clearly arbitrary and capricious. State v. Prof. Assoc. of N.J. Dep't of Ed., 64 N.J, 231, 259 (1974). We are not persuaded that the determination was arbitrary or capricious. We are fully satisfied that it is reasonable and is consonant with established principles of law. Affirmed.

672 F.2d 978 109 L.R.R.M. (BNA) 2911, 93 Lab.Cas. P 13,310 NATIONAL LABOR RELATIONS BOARD, Petitioner,v.HASBRO INDUSTRIES, INC., Respondent,Local 26L, Graphic Arts International Union AFL-CIO, Intervenor. No. 81-1227. United States Court of Appeals,First Circuit. Argued Sept. 17, 1981.Decided Feb. 3, 1982. Christine Weiner, Washington, D. C., with whom William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Peter M. Bernstein and Lawrence J. Song, Washington, D. C., were on brief, for petitioner. Roger S. Kaplan, New York City, with whom Neil M. Frank, Jo-Anne P. Morley, and Jackson, Lewis, Schnitzler & Krupman, New York City, were on brief, for respondent. Eugene Cotton, Chicago, Ill., with whom Cotton, Watt, Jones, King & Bowlus, Chicago, Ill., was on brief, for intervenor. Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, and MURRAY,* Senior District Judge. LEVIN H. CAMPBELL, Circuit Judge. 1 The National Labor Relations Board petitions for enforcement of its order finding Hasbro Industries, Inc.1 guilty of unfair labor practices and ordering it to bargain with Local 26L, Graphic Arts International Union, AFL-CIO (the Union). 2 Hasbro manufactures and distributes toys, printed materials and related products. It has four facilities in New England, but the dispute before us relates only to a group of printing employees at its main plant located on Newport Avenue, Pawtucket, Rhode Island. One of the principal operational divisions there was the packaging and box-making department, managed by Mr. Sidney Feldman and manned by approximately 45 employees. Within that department was a printing section,2 consisting at first of 18, and later 15, employees. It is these printing employees with whom we are here concerned. 3 On January 24, 1977, the Union wrote Hasbro requesting recognition as the bargaining agent of its printing and lithographic employees based on authorization cards signed by 11 of the 18 employees then in the printing section. On the same day, the Union initiated a representation proceeding before the Board. A few days later, Hasbro advised the Union that its representation claim would have to await the outcome of that Board proceeding. 4 After a hearing on the Union's petition, the Regional Director determined that the printing unit was appropriate and directed an election. As noted, this unit had 18 employees initially, but by the time of the election it had only 15 by reason of a reduction in force. Originally scheduled for June 1977, the election was postponed at Hasbro's request pending Board review of the Regional Director's decision. That decision was affirmed on or about November 21, 1977, and the election was finally held on December 16, 1977, resulting in seven votes for and eight votes against the Union. (Three additional votes cast by employees who had been laid off as the result of the reduction in force were challenged by Hasbro and invalidated by the Board.) 5 On December 22, 1977, the Union filed objections to the election. These were sustained by the Regional Director on February 6, 1978, who ordered a second election. On February 16, 1978, the Union filed unfair labor practice charges against Hasbro, and the second election was deferred pending determination of these. 6 Hearings before an administrative law judge (ALJ) were held in 1978 and 1979 on these and later-filed charges, and the ALJ rendered an opinion in August 1980. While rejecting several of the General Counsel's charges, the ALJ found that Hasbro had committed a series of unfair labor practices, both before and after the election, in violation of section 8(a)(1) of the Act. 29 U.S.C. § 158(a)(1).3 He further found that Hasbro's refusal to bargain with the Union violated section 8(a)(5), 29 U.S.C. § 158(a)(5), and that its conduct was such as to make the holding of a fair election impossible. He accordingly recommended, in addition to cease and desist orders and the posting of notice, that a Gissel order be entered,4 directing Hasbro to bargain with the Union, as representative of its printing employees. The Board substantially accepted the ALJ's findings and recommendations, and this enforcement proceeding followed. 7 Hasbro now challenges the Board's findings and rulings, asserting that they are unsupported in fact and legally incorrect. In reviewing the Board's action, we shall first consider its findings of section 8(a)(1) violations, and, at the end, shall consider whether the bargaining order was warranted. THE UNFAIR LABOR PRACTICES 8 1. Wage Increases to Three Employees before the Election 9 Wage increases were granted to three unit employees-Moreira, Tinley and Goyette-on November 28, 1977. The election was thereafter held on December 16, 1977, that date having been announced on November 21, 1977. The ALJ found that these increases violated section 8(a)(1) because "expressly timed to influence employees in the election." Hasbro responds by pointing out that the increases had been scheduled towards the beginning of 1977 and were therefore merely the consummation of earlier plans made entirely without reference to the election. 10 The evidence is undisputed that on January 10, 1977, Mr. Feldman, the department manager, scheduled, and listed on the payroll, projected wage increases for Tinley and Moreira. He did the same for Goyette sometime in April 1977, when Goyette was reclassified to a higher grade. Feldman's notations indicated that during 1977 Moreira would go from $4.60 to $5.40 in three steps: a 30-cent increase on February 1, 1977; a 25-cent increase on August 1, 1977; and a 25-cent increase on December 1, 1977. Tinley was listed as going from $3.45 to $3.90 in two steps: a 20-cent increase on July 1, 1977, and a 25-cent increase on December 1, 1977. Goyette was listed as being entitled to three increases: 20 cents on July 20, 1977; 20 cents on October 20, 1977; and 25 cents on November 20, 1977. 11 The record shows that in the case of Moreira and Tinley the planned raises were all implemented within a short time of the scheduled dates.5 Goyette's schedule was similarly implemented, except the increase slated for October 20, 1977, was inexplicably omitted. The raises here challenged-all put in effect on November 28-were those scheduled for Moreira and Tinley on December 1, and for Goyette on November 20. 12 We think there is insufficient evidence to support the ALJ's finding that the increases were "timed" to influence the election. The timing had been determined long before the election was scheduled, and the Company had thereafter followed its schedule with a considerable degree of fidelity. 13 The ALJ, indeed, did not question the Company's evidence showing that the increases for Moreira and Tinley had been projected before the Union had requested recognition, and, for Goyette, reflected an increase in grade and was planned well before anyone knew there would be an election in mid-December of 1977. Nor is there any doubt that the dates originally scheduled for implementing the raises preceded the election by some several weeks. Under these circumstances, we see no basis for holding that the raises on November 28 were improper under the Act. 14 Conferral of employee benefits while a representation election is pending for the purpose of inducing employees to vote against the Union interferes with the employees' protected right to organize, NLRB v. Exchange Parts Co., 375 U.S. 405, 84 S.Ct. 457, 11 L.Ed.2d 435 (1964). However, the presumption of illegality of wage increases and other benefits granted during the pendency of a union election is negated if the employer establishes that the conferral and announcement of such benefits are consistent with established company practice or were planned and settled upon prior to the initiation of the Union's organization campaign. Louisburg Sportswear Co. v. NLRB, 462 F.2d 380, 384 (4th Cir. 1972); NLRB v. Otis Hospital, 545 F.2d 252, 255 (1st Cir. 1976) (where the prospective benefits were already incorporated in the existing terms and conditions of employment, an employer could grant the benefits without fear of violating section 8(a)(1)). 15 Here there can be no serious contention that the wage increases were not part of an established company procedure. In fact, the ALJ found that "at some point" the three individuals would have received the raises. The Board's unfair practice finding seems to have entirely rested on its surmise that the timing of the wage increases was advanced to before the election so as to influence its result. This would have been improper. NLRB v. Styletek, 520 F.2d 275 (1st Cir. 1975). But in a case such as Styletek, "the company was unable to pinpoint a conclusive reason that justified this particular timetable." 520 F.2d at 281. Hasbro, to the contrary, has demonstrated "a conclusive reason," in the form of a predetermined schedule, which called for making the increases when they were in fact made.6 Although the Board argues otherwise, the evidence does not permit a reasonable inference that Hasbro had, in the past, ordinarily ignored that schedule. The Board's own rule, as noted in Styletek, is that when a representative election is pending, the employer should act as if the Union were not on the scene. 520 F.2d at 281 n.5. Here, Hasbro demonstrably did just that. Indeed, had it withheld the increases until after the election, it would have deviated from this rule. Accordingly, we find that the Board has failed to sustain its burden of showing that the timing of the wage increases was intended to interfere with the employees' exercise of their right to choose the Union as their bargaining representative. 2. Coercive Letters 16 Hasbro sent many letters to its printing employees in the brief period before the election urging them to weigh carefully their votes and suggesting strongly that a vote for the Union was not in their best interest. Two of these letters were found by the Board to contain improper threats of reprisal or force or promise of benefit and hence to exceed the free speech rights conferred upon employers by section 8(c) of the Act, 29 U.S.C. § 158(c). Section 8(c) provides, 17 The expressing of any views, argument, or opinion, or the dissemination thereof ... shall not constitute or be evidence of an unfair labor practice under ... this subchapter, if such expression contains no threat of reprisal or force or promise of benefit. (Emphasis supplied.) 18 In one letter, dated December 5, 1977, Hasbro listed various benefits it provided, such as educational assistance, scholarship aid for employees' children, blood bank, credit union, and the service award program. It then warned against "the real risks which you and your family may face if you make the wrong decision" (emphasis supplied) in the election of December 16. The letter went on to say, "If the Union is successful, the possibility that you and your family may be harmed if there are negotiations causes me great concern." The "dangers" listed from negotiations included the risk that wages and benefits now enjoyed might be lost, the possibility that Hasbro would not reach an agreement with the Union, the possibility of being forced to go on strike and receive no paycheck every Friday, the possibility of being permanently replaced as the result of a strike, and the hardship faced "if the tragedy of a strike should occur." 19 The second challenged letter was dated December 12, 1977. It stated, "if the Graphic Arts Union gets in here, you risk losing" 28 described benefits, including "Fair wages" and "Overtime pay" and such other items as health and medical coverage, pension plan, paid vacations and holidays, Christmas bonus, personal leave, and lunch and break periods. 20 Line-drawing in this area is not easy, but we think the Board acted within principles laid down by the Court in NLRB v. Gissel, 395 U.S. at 616-20, 89 S.Ct. at 1941-1943, in ruling that these letters went too far. The Court in Gissel said that even a sincerely held prediction by the employer of the consequences of voting in the Union may become a retaliatory threat if not "carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable consequences beyond his control...." 395 U.S. at 618, 89 S.Ct. at 1942. Certainly the instant letters point to no objective facts supporting the dire projections therein. These projections were, to be sure, labelled as possibilities, not absolute predictions, but their probability was so emphasized that we think the message could be viewed as tantamount to a prediction.7 Gissel makes clear that the touchstone for determining whether an employer's message is predictive or retaliatory is not simply its literal meaning but rather its overall "import" in the employment setting. 395 U.S. at 617, 89 S.Ct. at 1941. The utterance's implications and nuances are thus highly relevant. 21 The December 5 letter spoke of the vice-president's "personal concern" lest the employee and his family face "real risks" (underscored) if he makes "the wrong decision." It went on to emphasize the vice-president's concern over the "possibility that you and your family may be harmed if there are negotiations." The risks the employee faced, the letter continued, included possible loss of wages and benefits, the "tragedy" of a strike, and possible "permanent replacement." While this litany can be read as projecting an honest belief that the Union will be so irresponsible and unresponsive to its members' interests as to bring about such things entirely on its own, it can also be considered a covert message that, if the Union comes in, Hasbro will fight it, and its pro-union employees, tooth and nail, provoking confrontations which will result in lost benefits, strikes and the replacement of pro-union employees. In Gissel, the Court criticized as improper an employer's "basic assumption (expressed in messages to employees) that the Union, which had not yet even presented its demands, would have to strike to be heard." 395 U.S. at 619, 89 S.Ct. at 1942. These letters convey a similar basic assumption. 22 The second letter, dated December 12, 1977, went to the extreme of listing basics such as "fair wages" and overtime, health and pension benefits, as among 28 specific items which the employees risked losing if they voted in the Union. The ALJ concluded that the letter was so one-sided as to go beyond merely stressing that, as bargaining was a two-sided affair, it might result in diminution of existing benefits as well as the possibility of increased benefits. Rather the letter implied, or so the Board felt, that the Company would retaliate against unionization by withdrawing benefits if it could. 23 It is within "the Board's competence in the first instance to judge the impact of utterances made in the context of the employer-employee relationship." 395 U.S. at 620, 89 S.Ct. at 1943.8 See, e.g., NLRB v. Marine World USA, 611 F.2d 1274, 1277 (9th Cir. 1980). Here the ALJ found that certain of Hasbro's letters were proper and that these two were not. Some of the letters exonerated by the ALJ were themselves borderline. The ALJ's determination seems to us to reflect a conscientious choice and to fit reasonably within the section 8(c) guidelines set out in Gissel. We are therefore constrained to affirm the Board's findings. 24 3. Interrogation of Employee Pasadas by Two Hasbro Executives 25 Antonio Pasadas, a unit member, met with two of Hasbro's vice-presidents in the employer's cafeteria on December 13, 1977, three days before the election. The ALJ found that Pasadas was asked why he wanted the Union; this the ALJ found to be coercive and violative of section 8(a)(1).9 26 Hasbro challenges the ALJ's crediting of Pasadas's testimony rather than that of the two executives. Hasbro emphasizes Pasadas's language difficulties (a standby interpreter was used before the ALJ, although Pasadas answered in English most of the time), and points to the categorical denial by its executive of having asked Pasadas why he wanted a union. The ALJ said he credited Pasadas because his testimony was consistent and because of a record of the conversation he purportedly wrote later (although the value of this note is itself in dispute). We find nothing in the record which would warrant overruling the ALJ's determination of credibility. The Company's own witnesses were not in every respect consistent. Particularly where Pasadas's grasp of English was an issue, the ALJ was in the best position to judge. Credibility judgments are not an exact science, and can be abused; but the answer does not lie in remaking them at an appellate level unless it is clearer than it is here that error was committed. 27 Hasbro contends that even accepting Pasadas's version of events in toto, there is insufficient evidence that what was said was coercive. 28 Questioning an employee regarding his union sentiments is not per se violative of section 8(a)(1). The issue is whether the effect of the questioning is to restrain or coerce the employee in the exercise of his organizational rights under section 7. Dow Chemical Co. v. NLRB, 660 F.2d 637 (5th Cir. 1981); Paceco v. NLRB, 601 F.2d 180, 182 (5th Cir. 1979); NLRB v. Douglas Division, 570 F.2d 742, 745 (8th Cir. 1978); NLRB v. Otis Hospital, 545 F.2d 252, 256 (1st Cir. 1976). 29 The entire factual context in which the language is spoken is relevant to determining its coercive effect. NLRB v. Prince Macaroni Manufacturing Co., 329 F.2d 803, 806 (1st Cir. 1964); NLRB v. Otis Hospital, 545 F.2d at 256. See Paceco v. NLRB, 601 F.2d 180 (reflecting Fifth Circuit's application of factors set out in Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964), as augmented). 30 On this record, we believe the Board was entitled to find the interrogation coercive and violative of section 8(a)(1). The interrogators were both vice-presidents, high in the Company hierarchy. They initiated the meeting, which was held during working hours three days before the election. The object of their individual attention was a low-level employee of Portuguese background, who spoke English with difficulty. Being asked to tell, "Why I want the union. If I have some problem," by such august persons, and in these circumstances, could convey a sense of pressure. The interview was conducted without explanation of the purpose for which the information sought would be used. While Pasadas was reassured that pro-union people would not be discharged after the election and to do what was best for himself and his family, the asking of these questions in this isolated setting to a single employee could fairly be considered coercive. 31 4. Feldman's Remarks to Beaucage regarding Loss of Unit's Work 32 Sidney Feldman was manager of the 45-member packaging and box-making department of which the printing unit formed a part (comprising about one-third of its employees). The ALJ credited the testimony of Jean Beaucage, a unit member (and discredited Feldman's denial) that on December 15, 1977, the day before the election, Feldman told him that Hasbro "would never let another union in here ... they would farm out the work or barring that, they would close down the printing department for a year and take a business loss and reopen after a year." (The ALJ also credited Beaucage's testimony that in January 1978, Feldman said he "wasn't kidding ... about closing the plant down," and would deny making the statement if asked.) The ALJ and Board found the December 15, 1977 statement to Beaucage to violate section 8(a)(1) (the January 1978 statement was not charged or treated as a separate violation). 33 As we see no ground for rejecting the ALJ's credibility finding, we are left only with whether Beaucage's version of his conversation with Feldman supported the finding of a section 8(a)(1) violation. Beaucage testified that Feldman asked to see him while Beaucage was sitting up on a press at work. Beaucage stopped what he was doing and got down. Feldman then asked, 34 friend to friend, now that the campaign is winding down to its last final hours, do you think ... the company would allow another union to come into the plant? 35 Beaucage replied, "Yes," indicating that he believed Hasbro could well afford it. He opined that Hasbro was only really worried about unionization spreading to the other departments. 36 To this Feldman replied, "No," going on to say, 37 I don't know what they're going to do. They don't tell me anything. But they would never let another union in here.... They would farm the work out before they would. 38 When Beaucage expressed doubts as to Hasbro's ability to farm the work out and maintain schedule, Feldman said, "if they had to, Hasbro would revamp the whole-" "the rest of the shop and give it to an outside printing, if they had to." Feldman went on to say that "barring that, they would close down the Print Department for a year and take a business loss, and reopen after a year." Feldman's parting remark, after Beaucage persisted in being skeptical, was, "You remember I said this." 39 We sustain the Board's finding of violation. Feldman's statement that the work would be farmed out cannot be defended as merely "a prediction as to the likely economic consequences of unionization." NLRB v. River Togs, Inc., 382 F.2d 198, 201 (2d Cir. 1967). Economics were not mentioned, nor were any other factors outside Hasbro's control. See NLRB v. Yokell, 387 F.2d 751, 756 (2d Cir. 1967). Rather the thrust of the statement was that Hasbro "would never let another union in here.... They would farm the work out before they would." This was, in the words of Gissel, purely and simply an "implication that (the) employer may or may not take action solely on his own initiative for reasons unrelated to economic necessities and known only to him." 395 U.S. at 618, 89 S.Ct. at 1942. 40 It is true that Beaucage on cross-examination retreated somewhat from his direct testimony. He conceded that Feldman told him the Company and the Union would first bargain, and that "if a result was not reached ... then they would farm the work out." Even as so tempered, however, Feldman's utterance could be read as implying that Hasbro would close the printing section after complying minimally with whatever legal obligations it had. We think an implied threat of retaliation could reasonably be drawn. 41 We find no merit in Hasbro's defenses that Feldman was a mere low-level supervisor engaging in a friendly chat, cf. Federal-Mogul Corp. v. NLRB, 566 F.2d at 1257, and that his disavowal of being privy to the Company's plans reduced his remarks to the level of personal opinion. Feldman was manager of a 45-employee division of which Beaucage's 15-man unit was but a part. There is no reason to believe that employees such as Beaucage regarded the division manager as less than an arm of management. The conversation, furthermore, was purposefully initiated by Feldman during working hours suggesting that it was no chance encounter. And the ALJ could properly give but little weight to Feldman's disavowal of inside knowledge-his managerial position and the circumstances of the visit would speak louder than a pro forma disclaimer. 42 We affirm the finding of section 8(a)(1) violation in this regard. 5. Surveillance of Mark Stanley 43 The ALJ found that following the election (and a Christmas party) on December 16, Feldman said to bargaining unit employee Mark Stanley, "We know how you voted. They or I wouldn't hold that against you, and that there's three that I am out to get.... You know the three." This was found to give the impression of surveillance of Stanley's union activities and sentiments. 44 As the Fifth Circuit said in NLRB v. Mueller Brass Co., 509 F.2d 704 (5th Cir. 1975), "surveillance" only violates the Act if, within section 8(a)(1), it tends to interfere with, restrain or coerce Union activities. Surveillance thus becomes illegal 45 because it indicates an employer's opposition to unionization, and the furtive nature of the snooping tends to demonstrate spectacularly the state of the employer's anxiety. From this the law reasons that when the employer either engages in surveillance or takes steps leading his employees to think it is going on, they are under the threat of economic coercion, retaliation, etc. 46 Quoting Hendrix Manufacturing Co. v. NLRB, 321 F.2d 100, 104-05 n.7 (5th Cir. 1963). Given Stanley's well-known adherence to the Union, the mere statement, "we know how you voted," coupled with, "They or I wouldn't hold that against you," would seem harmless, falling within the rule that an employer's mere "acknowledgment" of an employee's union activity is not unlawful. NLRB v. Pilgrim Foods, Inc., 591 F.2d 110, 114 (1st Cir. 1978). But the additional language, "that there's three I'm out to get," changes the complexion. This threat suggests the Company is keeping track of union activity and is ready to hold it against employees generally even if not against Stanley at the precise moment. We think the remark sufficiently coercive in character to support the Board's finding of violation. 47 6. Feldman's Alleged Remarks to Enes, Pasadas and Moreira 48 At the hearing before the ALJ, Enes, Pasadas and Moreira, who were bargaining unit employees, all testified that on December 16, 1977-after the election results were announced-manager Feldman told them, in effect, that the employees were lucky the Union had not won the election since if the unit were unionized the Company would close the printing department. Counsel for Hasbro did not object to this particular testimony, but at various points in the hearing, both before and after, he objected to the introduction of evidence of other incidents which, like this one, were not specifically mentioned or charged as violations in the complaint. The General Counsel insisted, however, that such evidence was relevant by way of "background" and to show animus towards the Union. On that basis, the ALJ admitted it, but on several occasions stated specifically that it would not be used as the basis of independent unfair labor practice findings because not charged in the complaint. The ALJ reiterated that position in his decision, noting that he had received such evidence on the General Counsel's representation that it was for "background," but would not utilize it to find violations not alleged. Noting that the General Counsel did not move to amend the complaint, and Hasbro did not seek to adduce evidence on such matters, the ALJ ruled that the additional matters were not fully litigated and that any findings of a violation with respect thereto would be improper.10 49 The Board nonetheless indicated that these purported remarks formed one of a number of incidents as to which the ALJ had found section 8(a)(1) violations, saying of all such supposed findings, "We agree." 50 It is hard to know what to make of this. The Board could, of course, make additional unfair labor practice findings of its own in the absence of findings by the ALJ. The parties seem to believe that this is what the Board meant to do here. But the Board nowhere indicated that it was consciously making a finding of new unfair labor practice violations in place of the ALJ's express silence. Rather it simply attributed to the ALJ a section 8(a)(1) finding he did not make and said that it agreed. We are unwilling to translate this into an independent Board finding for two reasons. First, the Board gave no indication of intending to make an independent finding-especially not one that flew in the face of its own ALJ. To the contrary, the Board thought it was sustaining its ALJ. Second, were the Board to have made a finding of its own, we have serious doubts that it could stand, given the ALJ's express reassurances during the hearing, and later, that evidence of this character would not be used as the basis of an additional unfair labor practice violation. NLRB v. I. Posner, Inc., 304 F.2d 773, 774 (2d Cir. 1953). See also Soule Glass and Glazing Co. v. NLRB, 652 F.2d 1055, 1073-75 (1st Cir. 1981). Basic fairness would prevent the Board from going back on promises thus given. We accordingly do not accept the existence of any valid finding of a separate section 8(a)(1) violation based on this incident. We agree with the ALJ, however, that the testimony was properly received for its bearing on those charges that were under consideration, and on the bargaining order. 51 7. Wage Increases Granted to Unit Employees Following the Election 52 The Board found that the Company violated section 8(a)(1) of the Act when on January 7, 1978, while objections to the election were pending, the Company granted wage increases to all bargaining unit employees. Although the Board conceded that general wage increases were granted by the Company each January, it nevertheless concluded that the increases following the election both far eclipsed those granted in the previous year and were substantially higher than those granted non-bargaining unit employees. 53 The Company argues that the Board's findings are erroneous since it failed to consider the Company's reliance on an industry wage survey which revealed that, in the period preceding the 1978 wage increases, Hasbro's salaries were below the industry mean. The ALJ did note and examine the wage survey upon which the wage increases were allegedly based. However, after examining the wage increases in the light of the wage survey, he concluded that the wages granted to the bargaining unit employees were not based solely on the recommendations of the industry survey but were granted in an attempt to both demonstrate to the unit employees that a union was unnecessary and erode support for the Union. 54 In NLRB v. Exchange Parts Co., 375 U.S. 405, 409, 84 S.Ct. 457, 459, 11 L.Ed.2d 435 (1964), the Supreme Court ruled that the conferral of employee benefits during the pendency of an election unlawfully interferes with the employees' right to organize if the benefit is granted in an attempt to erode employee support for the Union. 55 Post-election benefits granted while objections are pending or while there is a possibility of a rerun election may also be regarded as an unlawful interference with an employee's right to support unionization. NLRB v. Styletek, 520 F.2d 275, 280 (1st Cir. 1975); NLRB v. Gruber's Super Market, Inc., 501 F.2d 697, 701-03 (7th Cir. 1974); Luxuray of New York v. NLRB, 447 F.2d 112, 118-19 (2d Cir. 1971); General Teamsters and Allied Workers Local Union v. NLRB, 427 F.2d 582, 586 (D.C.Cir.1970). In NLRB v. Gotham Industries, Inc., 406 F.2d 1306 (1st Cir. 1969), this court articulated the preferred procedure for proving an "unlawful motivation" for a challenged wage increase or benefit. In Gotham, we ruled that in order for the Board to establish a section 8(a)(1) violation, it was incumbent upon the Board to show that the benefit was improperly motivated. If the Board was able to fulfill this initial requirement, the employer then was required to come forward with affirmative evidence of proper business justifications for the increase. If the employer was able to produce a proper business justification for the challenged wage benefit, it became incumbent upon the Board to show that the benefit was primarily motivated by an anti-union purpose. NLRB v. Gotham Industries, Inc., 406 F.2d at 1309; cf. NLRB v. Wright Line, 662 F.2d 899 (1st Cir. 1981) (where in an improper discharge case this court stated that while an employee may bear a burden of production to rebut the general counsel's prima facie case the burden of persuasion at all times remains upon the Board). 56 The Company argues that the wage increases were part of a long-standing Company policy to grant annual wage increases each January and that the amount of the increases was determined by the non-competitive nature of its wage levels compared to other companies participating in a local wage survey of industry wages, its profit position and ability to absorb costs, its labor contract settlements and several other factors. The ALJ, on the other hand, found that while the giving of wage increases was part of a long-standing Company policy that contained no anti-union purpose, the amount of the particular wage increases granted to bargaining unit employees so far exceeded the norm as to show an intention to erode the employees' support for the Union. This improper motive was demonstrated by the fact that the increases granted to bargaining unit employees both were across-the-board increases unrelated to initial salaries and were significantly higher than the increases granted to most of the non-unit employees. 57 Our review of the evidence leads us to conclude that there is sufficient record support for the ALJ's finding that the Company's stated justifications did not form the true motive for the challenged increases. 58 The record reveals that both in terms of flat rate increases and as a percentage of current salary, the wage increases granted to bargaining unit employees were substantially larger than those granted to most non-bargaining unit employees and that the wage increases were significantly greater than those granted unit employees during the previous year.11 Moreover, it was open to the ALJ to conclude that Hasbro never proved that it set the 1978 wages for unit employees strictly by reference to prevailing industry wage levels-or, indeed, that before the Union arrived on the scene, Hasbro had made it a practice to refer to industry wage levels in the printing unit. 59 We conclude that the Board's finding that the January 1978 increases were granted in an attempt to erode support for the Union and constituted a section 8(a)(1) violation is supported by substantial evidence and must stand. THE BARGAINING ORDER 60 The Board, as had the ALJ, found that the Company's actions violated section 8(a)(5) of the Act and warranted the issuance of a remedial bargaining order. As a basis for issuing the bargaining order in lieu of holding a second election, the Board emphasized the high wage increases granted bargaining unit employees immediately after the election. The Board also stated that respondent, as part of an overall design to thwart the free will of its 15 unit employees, had made it clear to four employees that selecting the Union would mean closing the department; distributed letters to each employee's home advising that a union victory would in essence be tantamount to the sacrifice of existing benefits; gave one employee the impression that his union activities were under surveillance; and subjected another employee to interrogation concerning his union sentiments. The Board found it unlikely that traditional remedies would be effective in overcoming the lingering coercive effects of the Company's actions on "this relatively small unit." 61 We think these findings are supported and that they justified the issuance of a bargaining order. NLRB v. Gissel, 395 U.S. at 614-15, 89 S.Ct. at 1940. While we do not accept the Board's finding of a section 8(a)(1) violation stemming from pay raises given to Moreira, Tinley and Goyette on November 28, 1977, we do not perceive this erroneous finding as forming a critical aspect of the Board's reasoning in issuing a bargaining order. The Board itself laid greatest stress upon the post-election pay increases. Nor do we find it of any great consequence that the Board labelled Feldman's alleged remarks to Enes, Pasadas and Moreira as a section 8(a)(1) violation; the ALJ credited testimony that these remarks were, in fact, made, and the ALJ and Board were entitled to consider this evidence in determining whether or not to issue a bargaining order, although not for purposes of establishing a separate section 8(a)(1) violation. 62 We accordingly affirm the Board's findings of section 8(a)(1) violations, except for those stemming from the November 28, 1977 wage increases, and Feldman's December 16, 1977 remarks to Enes, Pasadas and Moreira. We enforce the Board's order, including the bargaining order, except we direct the Board to delete therefrom all references and findings concerning the disallowed section 8(a)(1) violations. 63 So ordered. * Of the District of Massachusetts, sitting by designation 1 The Board's decision and order is reported at 254 NLRB No. 70 2 The printing section apparently operated offset presses which printed the labels on the toy packages, play money, and so on 3 Section 7 of the National Labor Relations Act, 29 U.S.C. §§ 151 et seq., guarantees employees, among other rights, the right to form, join or assist labor organization and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. Section 8(a)(1) of the Act makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of their rights guaranteed in section 7." 4 NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969) 5 Moreira received his 30-cent raise on January 31, 1977; his 25 cents on August 1, 1977; and the contested 25-cent raise on November 28, 1977. Tinley received 20 cents on July 11, 1977 and the contested 35 cents on November 28, 1977 6 It should be borne in mind that the original schedule for the wage increases provided that the raises would be granted on November 20 for one employee and on December 1 for the other two employees. Both of these dates preceded the December 16 election date. The raises were actually conferred on November 28 7 The Court in Gissel went on to prohibit, "Any implication that an employer may or may not take action solely on his own initiative for reasons unrelated to economic necessities and known only to him...." 395 U.S. at 618, 89 S.Ct. at 1942 (emphasis supplied). Strikes, permanent replacement and reduced wages depend not only on action by the Union but on that of the employer. Thus unsupported predictions of these may imply not only that the employer expects the Union to be aggressive but that he himself will take a particularly hard line if there is a union 8 This and much other language in Gissel contradicts Hasbro's argument that because an employer's letters are "written instruments," a reviewing court owes no deference to the Board. Cf. Federal-Mogul Corp. v. NLRB, 566 F.2d 1245, 1256 (5th Cir. 1978). Obviously courts are not bound to accept the Board's interpretation in all section 8(c) cases, and should review them carefully given the importance of protecting the employer's as well as employees' rights. But the Board's assessment of the overall import of the employer's comments in the industrial setting is entitled to respect. It is not the legal effect of a writing that is here being construed but rather its probable impact on employees. 395 U.S. at 617, 89 S.Ct. at 1941 9 Pasadas gave the following testimony regarding the meeting between himself and the two vice-presidents: Q. Directing your attention to December 13th 1977, did you have a meeting with Mr. Maxwell and Mr. Fornal? A. Yes. Q. Could you tell us where this meeting was? A. In the cafeteria. Q. Was there anyone else besides Mr. Maxwell, Mr. Fornal, and yourself present? At that meeting? A. Yes. Me, and Mr. Maxwell and Mr. Fornal. Q. Can you tell us what was said at that meeting? A. Well, when I went there they asked me why I want the Union. If I had some problem. So I answered I don't like to move off of one press onto another press, and I, of course, I want some more money. And I asked if the Union come in, would some people I can't explain it in English. THE INTERPRETER: He asked if the Union didn't come in would some of the people that were involved with the Union get thrown out, and they responded by saying no. And they told me again do the best you think for you and for your family. Q. (By Mr. Feaster) For family, did you say? A. Yes. 10 While the ALJ declined to find unfair labor practices with respect to these additional matters, he did state, as further justification for the bargaining order, that he credited Enes, Pasadas and Moreira, that Feldman told them on December 16, 1977, that they were lucky the Union did not win because the printing section would be closed. 11 The record reveals that ten of the twelve bargaining unit employees received wage increases of 80 cents per hour, one received a 70-cent per hour increase and another received a 60-cent per hour increase. Of the 487 employees listed in Joint Exhibit Number 5 only 20 other employees received wage increases of 80 cents or more per hour, with the average increase for all employees being less than 40 cents per hour. Thus, while only seven percent of the workers listed in Joint Exhibit Number 5 received increases of 80 or more cents, approximately 73 percent of the bargaining unit employees received such increases. In addition even if we were to review the increases as a percentage of base salary, as the Company suggests, such an analysis is not fatal to the Board's reasoning. While it may be true, as the Company argues, that 28 percent of the non-unit employees who received wage increases received percentage increases of 14 percent or more, it does not explain why 100 percent of the bargaining unit employees received such increases. In addition, of the non-unit employees who received flat increases of 80 cents or more, only 75 percent of them received a 14 percent or greater increase in their salary while all of the bargaining employees were granted such a percentage increase

821 F.2d 1348 125 L.R.R.M. (BNA) 3178, 107 Lab.Cas. P 10,010 WAREHOUSEMEN'S UNION LOCAL NO. 206, affiliated with theInternational Brotherhood of Teamsters and Helpersof America, Plaintiff-Appellee,v.CONTINENTAL CAN COMPANY, INC., a foreign corporation,Defendant-Appellant. No. 86-4044. United States Court of Appeals,Ninth Circuit. Argued and Submitted June 4, 1987.Decided July 7, 1987. Josephine B. Vestal, Bellevue, Wash., for defendant-appellant. Stephen H. Buckley and Paul C. Hays, Portland, Or., for plaintiff-appellee. Appeal from the United States District Court for the District of Oregon. Before FARRIS and BRUNETTI, Circuit Judges, and INGRAM, District judge.* FARRIS, Circuit Judge: BACKGROUND 1 Local No. 206 represents all of the shipping department employees at the Continental Can Company's Portland plant. The company and the union had a collective bargaining agreement from 1981 to 1984. When that agreement terminated in May, 1984, the parties began negotiations for a successor agreement. One topic discussed in negotiations was the company's plan to engage an independent contractor to cover all its transportation needs. In September, a contract covering the period 1984 to 1986 was ratified by the membership. The new contract made brief mention of the company's intent to subcontract its transportation operations. In December the company, acting on its interpretation of the subcontracting clause, laid off all of its union truck drivers and arranged for an independent labor broker to provide drivers. The union contended that the company could contract with another company for transportation, but that "as long as Continental Can Company has a truck fleet, Local 206 will drive them." 2 The union first petitioned the regional director of the NLRB, on the theory that the company's hiring of nonunion drivers violated the National Labor Relations Act. The regional director declined to issue a complaint against the company, and his decision was affirmed by the NLRB's General Counsel. The union then filed a grievance under the contract alleging that the company had violated the provision that nonunion persons cannot be employed to do bargaining-unit work. After the company refused to go to binding arbitration on the issue, the union sought an order in the district court compelling arbitration. The court held that the dispute concerned the terms of the 1984-1986 agreement, and therefore that it came under the agreement's mandatory arbitration clause. The court granted summary judgment for the union and ordered that the dispute be submitted to an arbitrator. 3 On appeal, the company contends that the 1984-1986 agreement never went into effect because the parties did not agree on the meaning of its language. It argues alternatively that the decision of the NLRB not to issue a complaint against the company resolved the issue, precluding this suit. 4 In reviewing summary judgment, we must determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Ashton v. Cory, 780 F.2d 816, 818 (9th Cir.1986). We affirm. DISCUSSION 5 I. Was there a contract? 6 The company submitted its final offer for a new contract on September 24, 1984. On September 29, the membership voted to accept the offer. The company was advised of the acceptance. The new contract consisted of the 1981-1984 agreement as modified by the company's written final offer. The relevant part of that final offer provided: 7 Also, as discussed during our meeting on September 21, 1984, competitive pressures require that we discontinue our Company-operated fleet at the Portland operation. Our Traffic Department has been advised to develop a timetable and program to provide outside coverage for our transportation requirements. Once that program is finalized, I will review that program with your office. 8 Months later, the company prepared a draft of the new contract. The union objected that the draft did not reflect the agreement that was reached in negotiations, and refused to sign it. The company then laid off all of its union truck drivers and contracted with an independent labor broker to supply drivers for the company truck fleet. 9 Until the time that it refused to go to arbitration, the company's actions indicated its understanding that a valid collective bargaining contract existed. It began implementing the terms of the final offer that was incorporated in the contract. Its decision to hire outside drivers for its truck fleet was purportedly done under authority of the final agreement. Despite those actions, the company contends that the contract was nullified because the parties never agreed on the substantive terms. It argues in effect that the parties were so far apart in their understanding of the language in the final offer that there was no meeting of the minds, and hence no contract. 10 None of the relevant facts are in dispute. The only question is, given these facts, did the parties have a contract as a matter of law? In determining whether a contract was formed, the court employs "general contract principles adapted to the collective bargaining context to determine whether the two sides have reached an agreement." Cf. NLRB v. World Evangelism, Inc., 656 F.2d 1349, 1355 (9th Cir.1981). Normal rules of offer and acceptance govern in collective bargaining. Teamsters, Chauffeurs, Warehousemen & Helpers Local 524 v. Billington, 402 F.2d 510, 513 n. 2 (9th Cir.1968); Operating Engineers Pension Trust v. Cecil Backhoe, 795 F.2d 1501, 1504 (9th Cir.1986). 11 The company's final offer, and the union's acceptance by ratification of the membership, bear all the outward indicia of a valid contract. Union acceptance of an employer's final offer is all that is necessary to create a contract, regardless of whether either party later refuses to sign a written draft. NLRB v. Deauville Hotel, 751 F.2d 1562, 1569 n. 10 (11th Cir.1985); Teamsters v. Billington, 402 F.2d at 513; Service Employees Int'l Local No. 55 v. Cedar Rapids Community School Dist., 222 N.W.2d 403, 405 (Iowa 1974) (manifestation of assent to same terms, reached by process of offer and acceptance, required for valid contract). The court may consider the surrounding circumstances and the intentions of the parties to determine if a collective bargaining agreement exists. Operating Engineers Pension Trust v. Gilliam, 737 F.2d 1501, 1504 (9th Cir.1984). The union argues that the company's behavior prior to the bringing of this suit shows that it believed that a contract existed. However, where there are objective manifestations of the parties' intent to create a contract, the court need look no further. Caporale v. Mar Les, Inc., 656 F.2d 242, 244 (7th Cir.1981). See also 1 Williston on Contracts Sec. 20 (3d ed. Jaeger 1961); 17 C.J.S. Contracts Sec. 32; Huge v. Overly, 445 F.Supp. 946, 949 (W.D.Pa.1978) (objective standard applies to formation of contract, regardless of meeting of minds in subjective sense); United States v. Roberts, 436 F.Supp. 553, 557-58 (E.D.Tx.1977) (to determine whether parties agreed to terms of contract, it is objective, not subjective intention of parties that the court must ascertain). 12 It thus falls to the company to demonstrate that, although its agreement with the union has the outward appearance of a valid contract, there was no meeting of the minds because the parties understood entirely different things by the written terms of the agreement. See U.S. for Use and Benefit of Union Bldg. Materials Corp. v. Haas & Haynie Corp., 577 F.2d 568, 573 (9th Cir.1978) (If neither party knows or has reason to know the meaning attached by the other to an ambiguous clause, there is no contract.) (citing Restatement (Second) of Contracts Sec. 21A(1)). See also BA Mortgage Co. v. Unisal Development Corp., 469 F.Supp. 1258, 1267-68 (D.Colo.1979) (Where parties in good faith ascribe different meanings to a material term of a contract, there is no meeting of the minds, and no valid contract.); Walther & CIE v. United States Fidelity & Guaranty Co., 397 F.Supp. 937, 941 (M.D.Pa.1975) (If the court is convinced that the parties gave substantially different meanings to the words of an agreement, there is no contract.) 13 However, "[t]he fact that differences subsequently arise between the parties as to the construction of the contract ... is not of itself sufficient to affect the validity of the original contract or to show that the minds of the parties did not meet with respect thereto." 17 C.J.S. Contracts Sec. 31. See Benjamin Foster Co. v. Commonwealth, 318 Mass. 190, 61 N.E.2d 147, 150-51 (1945) ("The fact that an executed written contract contains within itself difficulties of construction about which the parties disagree does not enable a party to contend that the minds never met."). See also, Blackhawk Heating & Plumbing Co. v. Data Lease Financial Corp., 302 So.2d 404, 407 (Fla 1974); Leitner v. Braen, 51 N.J.Super. 31, 143 A.2d 256, 260 (App.Div.1958); Koelling v. Bank of Sullivan, 220 S.W.2d 794, 796 (Mo.App.1949); Milliken-Tomlinson Co. v. American Sugar Refining Co., 9 F.2d 809, 812-13 (1st Cir.1925). 14 The company has made no showing on this issue other than the parties' current disagreement over the terms of the company's final offer. That showing is not sufficient to require that the contract be set aside. 15 II. Did the Regional Director's Decision Preclude Arbitration? 16 After the company laid off its union truck drivers, the union filed an unfair labor practice charge with the regional director of the NLRB. The regional director found that "it does not appear that further proceedings on the charge are warranted inasmuch as the allegations in the unfair labor practice charge show that the subcontracting of the truck-driver job classification was discussed during the course of negotiations and was part of the Employer's final offer which was accepted by a ratification vote on September 29, 1984." The company argues that the NLRB's decision is res judicata in this matter, and that an arbitrator would be powerless to issue a contrary decision. 17 In this circuit there are arguably two lines of authority on the question of the preclusive effect of a prior NLRB decision. See Local Joint Executive Bd. v. Royal Center, Inc., 796 F.2d 1159, 1164 (9th Cir.1986), cert. denied, 107 S.Ct. 881 (1987). However, the two lines can be harmonized. 18 We have stated clearly that "in cases involving issues of fact or contract interpretation the NLRB's refusal to issue a complaint does not act as res judicata or bar a party from seeking arbitration under the collective bargaining agreement and ... no collateral estoppel effect attaches to such refusal." Edna H. Pagel, Inc. v. Teamsters Local Union 595, 667 F.2d 1275, 1279-80 (9th Cir.1982); Hospital and Institutional Workers Union Local 250 v. Marshal Hale Memorial Hospital, 647 F.2d 38, 41-42 (9th Cir.1981). The company relies upon Carpenters' Local Union No. 1478 v. Stevens, 743 F.2d 1271 (9th Cir.1984), cert. denied, 471 U.S. 1015, 105 S.Ct. 2018, 85 L.Ed.2d 300 (1985). In that case, we found that an arbitrator's award contrary to an earlier ruling of the NLRB impinged on the Board's authority under section 9 of the National Labor Relations Act to determine the appropriate bargaining unit. Our decision in Stevens was limited to questions coming under section 9(b) of the National Labor Relations Act, 29 U.S.C. Sec. 159(b), which provides that "[t]he Board shall decide in each case whether ... the unit appropriate for purposes of collective bargaining shall be the employer unit, craft unit, plant unit or subdivision thereof." Moreover, in Stevens, the NLRB had not simply declined to issue a complaint. It had accepted the case on the merits and issued a decision and order. 19 In Local Joint Executive Board v. Royal Center, Inc., 796 F.2d 1159 (9th Cir.1986), we were again faced with a question implicating section 9(b). In Royal Center, however, the NLRB had not ruled on the merits of the section 9(b) dispute, but had refused to issue a complaint. We followed Edna H. Pagel and found that an NLRB decision not to issue a complaint is not res judicata in a subsequent arbitration. 796 F.2d at 1164-65. 20 Here, the regional director's only action was to refuse to issue a complaint. We follow the established rule of Edna H. Pagel and Royal Center, and conclude that the NLRB's decision does not preclude arbitration of this dispute. Our decision is consistent with the law in other circuits. See, e.g., Miller Brewing Co. v. Brewery Workers Local Union No. 9, 739 F.2d 1159, 1166 (7th Cir.1984), cert. denied, 469 U.S. 1160, 105 S.Ct. 912, 83 L.Ed.2d 926 (1985); Courier-Citizen v. Boston Electrotypers Union No. 11, 702 F.2d 273, 276 n. 6 (1st Cir.1983); United Food and Commercial Workers v. NLRB, 675 F.2d 346, 352 n. 7 (D.C.Cir.1982); Crescent City Lodge No. 37 v. Boland Marine and Manufacturing Co., 591 F.2d 1184, 1187 (5th Cir.1979); Peltzman v. Central Gulf Lines, Inc., 497 F.2d 332, 334 (2d Cir.1974), cert. denied, 423 U.S. 1074, 96 S.Ct. 857, 47 L.Ed.2d 750 (1976). CONCLUSION 21 The company's final offer, and the union's acceptance, were sufficient to establish that the parties had an intent to contract. The later disagreement over the meaning of the terms did not by itself show that there was no original understanding between the parties as to what they had agreed upon. There was a valid contract, providing for binding arbitration of "any difference between the Local Management and the Union or employees as to the interpretation or application of, or compliance with this Agreement respecting wages, hours, or conditions of employment...." The dispute over the company's employment of nonunion truck drivers comes under the arbitration clause, and is a proper subject for arbitration. The decision of the NLRB not to issue a complaint in the matter does not preclude arbitration. 22 Our determination that this dispute is arbitrable is based on the language of the arbitration clause. We make no judgment as to the substantive contract clauses that go to the merits of the dispute. See Laborers Int'l Union Local 252 v. Town Concrete Pipe of Washington, Inc., 680 F.2d 1284, 1285 (9th Cir.1982). "Interpretation of substantive provisions must be left to the arbitrator in the first instance." Town Concrete, 680 F.2d at 1285. 23 AFFIRMED. * Honorable William A. Ingram, United States District Judge, Northern District of California, sitting by designation

Order entered December 19, 2018 In The Court of Appeals Fifth District of Texas at Dallas No. 05-18-01156-CV No. 05-18-01350-CV IN THE INTEREST OF N.E.C., A CHILD On Appeal from the 301st Judicial District Court Dallas County, Texas Trial Court Cause No. DF-97-20578 ORDER Before the Court are appellant’s November 16, 2018 motion to consolidate and December 13, 2018 notice of withdrawal of motion to consolidate. We GRANT appellant’s notice of withdrawal and withdraw the motion to consolidate from the Court’s consideration. The Court has reviewed the clerk’s record in appellate cause number 05-18-01156-CV and finds that it is incomplete as it does not contain the appealed order, among other documents. On December 13, 2018, appellant filed a motion requesting additional time to request a supplemental clerk’s record and any additional reporter’s records he may need and for additional time to file his brief. Appellant has filed courtesy copies of her request to Dallas County District Clerk Felicia Pitre requesting a supplemental clerk’s record with fifty-one additional documents and request to Shantel Beheler, Official Court Reporter for the 301st Judicial District Court, for reporter’s records from seven additional hearings. We GRANT appellant’s motion as follows: We ORDER Ms. Pitre to file, by December 28, 2018, a supplemental clerk’s record containing the requested documents. We ORDER Ms. Beheler to file, by January 29, 2019, the additional requested reporter’s records. Appellant shall file his brief by February 28, 2019. We DIRECT the Clerk of this Court to send a copy of this order to Ms. Pitre, Ms. Beheler, and all parties. /s/ ADA BROWN JUSTICE 

IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT COMMONWEALTH OF PENNSYLVANIA, : No. 287 WAL 2017 : Respondent : : Petition for Allowance of Appeal from : the Order of the Superior Court v. : : : THADDEUS THOMAS CRUMBLEY, : : Petitioner : ORDER PER CURIAM AND NOW, this 13th day of December, 2017, the Petition for Allowance of Appeal is DENIED. 

C-Track E-Filing Nevada Appellate Courts Appellate Case Management System C-Track, the browser based CMS for Appellate Courts Case Search Participant Search

297 F.Supp. 1305 (1969) Alex CLARK, John T. Magee and Robert Turner, et al., Plaintiffs, v. AMERICAN MARINE CORPORATION, a Louisiana Corporation, Defendant. Civ. A. No. 16315. United States District Court E. D. Louisiana, New Orleans Division. April 11, 1969. Franklin E. White, Robert Belton, New York City, Lolis E. Elie, New Orleans, La., for plaintiffs. Richard C. Keenan, New Orleans, La., for defendant. REASONS FOR ORDER RUBIN, District Judge: In this action brought under Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e, and under the 1866 Civil Rights Act, 42 U.S.C. § 1981, three former employees of the American Marine Corporation, who allege that they were both discharged and refused re-employment as a result of racial discrimination, seek back pay from the time of their alleged wrongful discharge. In addition, and by separate counts of their complaint, they seek an injunction prohibiting defendant from denying equal employment opportunities to them and other Negroes similarly situated. These counts are class actions. Rule 23 of the Federal Rules of Civil Procedure, which pertains to class actions, was amended during the pendency of this action and the amendment became effective July 1, 1966. The order of February 28, 1966, of the United States Supreme Court provided that the amended *1306 rule would take effect July 1, 1966, and would "govern * * * all further proceedings in actions then pending, except to the extent that in the opinion of the court their application in a particular action then pending would not be feasible or would work injustice * * *" (86 S.Ct. 211). The application of the amended rule here is entirely feasible and will work no injustice. If well founded on the merits, this class action is clearly of the type described in Rule 23(b) (2): "[T]he party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." Plaintiffs contend that the members of the class on behalf of whom this action is brought should be defined as, "* * * other Negroes, who (1) may previously have been discharged on account of race; or (2) are presently employed or (3) who may subsequently be employed by the defendant." There can be no doubt that the portion of the action that seeks injunctive relief is properly maintainable as a class action on behalf of all Negroes presently employed by defendant and those who may hereafter be employed. Jenkins v. United Gas Corp., 5 Cir. 1968, 400 F.2d 28; Oatis v. Crown Zellerbach Corp., 5 Cir. 1968, 398 F.2d 496. Defendant objects only to the inclusion of persons who may previously have been discharged on account of race. Apparently, this objection is founded at least in part upon apprehension that such persons might become entitled to automatic reinstatement or back pay by virtue of their inclusion. But the complaint, which seeks back pay only on behalf of the individually named plaintiffs, makes no mention of reinstatement, and, at the hearing, counsel for plaintiffs denied any intention to seek back pay or reinstatement for anyone other than the individually named plaintiffs. The only relief sought on behalf of Negroes previously discharged is that they be entitled as members of the class seeking injunctive relief to rely upon and be protected by any injunction that may be issued. They shall therefore be included as members of the class. Plaintiffs suggest that notice to members of the class should not be required. The class action Rule makes notice mandatory in some cases. Rule 23(c) (2). But it contains no mandatory requirement with respect to notice when the class claim is merely one for injunctive relief under Rule 23(b) (2). However, Rule 23(d) (2) provides: "[T]he court may make appropriate orders: * * * requiring, for the protection of the members of the class or otherwise for the fair conduct of the action, that notice be given in such manner as the court may direct to some or all of the members of any step in the action, or of the proposed extent of the judgment, or of the opportunity of members to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or otherwise to come into the action." A class action may of course affect the legal rights of all the members of the class. While the Rules do not make notice mandatory in class actions maintained under Rule 23(b) (2), it has been said that due process requires that those who are bound by a legal action have notice of it, and an opportunity either to be heard in it or to withdraw from it, if they should choose to do so. Eisen v. Carlisle & Jacquelin, 2 Cir. 1968, 391 F. 2d 555, 564-565; Cranston v. Freeman, N.D.N.Y., 1968, 290 F.Supp. 785, 787. See also, Mullane v. Central Hanover Bank and Trust Co., 1950, 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865; Advisory Committee's Note, Proposed Rules of Civil Procedure, 39 F.R.D. 98, 106-107 (1965). Cf., Note, 43 Tulane L.Rev. 369 (1969). Within 10 days plaintiff shall submit a suggestion for a proposed method of giving notice, and within 5 days thereafter, *1307 defendant shall submit its comments and further suggestions. The court will thereafter issue a further order determining in what manner notice shall be given.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 00-2361 CALVIA LYNN HILL, Plaintiff - Appellant, versus WAL-MART STORES, INCORPORATED, Defendant - Appellee. Appeal from the United States District Court for the Eastern Dis- trict of North Carolina, at Raleigh. James C. Fox, Senior District Judge. (CA-00-425-5-F(2)) Submitted: March 22, 2001 Decided: March 27, 2001 Before WILKINS, LUTTIG, and MICHAEL, Circuit Judges. Affirmed by unpublished per curiam opinion. Calvia Lynn Hill, Appellant Pro Se. Todd M. Sullivan, WOMBLE, CARLYLE, SANDRIDGE & RICE, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Calvia Lynn Hill appeals the district court’s order granting summary judgment in this employment discrimination action. We have reviewed the record and the district court’s opinion and find no reversible error. Accordingly, we affirm on the reasoning of the district court. Hill v. Wal-Mart Stores, Inc., No. CA-00-425-5- F(2) (E.D.N.C. filed Sept. 26, 2000; entered Sept. 27, 2000). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 2 

797 So.2d 686 (2000) Jerry M. GRAVOIS, Individually and on Behalf of the Minor Chelsey Lynn Gravois, and Mary Crochet Gravois v. DELTA AIRLINES, INC. and Baton Rouge Metropolitan Airport. No. 99 CA 0824. Court of Appeal of Louisiana, First Circuit. May 12, 2000. Woodrow W. Wyatt, Baton Rouge, Counsel for Plaintiffs/Appellants Jerry M. *687 Gravois, Individually and on Behalf of the Minor Chelsey Lynn Gravois, and Mary Crochet Gravois. C. Michael Pfister, Dana Anderson-Carson, Metairie, Counsel for Defendants/Appellees Delta Airlines, Inc. and Baton Rouge Metropolitan Airport. Before: GONZALES, FITZSIMMONS, and WEIMER, JJ. WEIMER, Judge. Plaintiffs, Jerry and Mary Crochet Gravois, brought suit against Delta Airlines, Inc. (Delta) and Baton Rouge Metropolitan Airport District (Airport) for personal injuries Jerry Gravois received while performing his duties as an employee of Air Host, Inc. (Air Host), a commercial airline catering service. Defendants, including Fireman's Fund Insurance Company, filed a motion for summary judgment, which was granted by judgment dated November 16, 1998. Plaintiffs perfected this appeal. We affirm. BACKGROUND The facts surrounding the incident in question were supplied by Gravois in his deposition. Gravois was interviewed and hired by Cecil Provines, the general manager for Air Host in Baton Rouge, an airline caterer. Gravois began work for Air Host during the latter part of October 1989. Until the day of the accident, he worked with and under the supervision of Jeff Provines. On the day of the accident, November 7, 1989, Jeff Provines was absent because of illness, and Gravois was required to service the planes alone. The usual routine for servicing the planes was for two Air Host employees to ride on the tarmac to the plane with the driver in the cab of an Air Host truck that was loaded with meals and/or drinks to be placed on the plane. While the jet engines were idling, the Air Host employees would board the plane to place the caterer's food and supplies in the two kitchens and to remove the "leftovers" from the previous flights. After the plane was loaded and the leftovers placed on the Air Host truck, the driver would leave in the truck. The two Air Host employees would station themselves near the door of the plane so they could supply the flight attendant with "bank meals"[1] for any last minute passengers. Once the passengers boarded and all the necessary meals were supplied, the flight attendant signed a receipt, and the Air Host employees returned to the kitchen with any bank meals that had not been needed. The entire procedure did not generally take more than 15 minutes. On the days that Gravois worked with Jeff Provines, the two men had positioned themselves in the jetway where the passengers were entering in order to have the bank meals at the ready. On the day of the accident, when Gravois was working alone, the jetway was not used for the particular Delta flight that he was loading. The Delta jet had not stopped at the usual gate because of some construction on the tarmac. The passengers were boarding via portable outdoor stairs. After the plane was loaded, Gravois placed himself at the top of the stairs in order to be able to supply the required bank meals. When the flight attendant signed the receipt and closed the door of the plane, Gravois descended the stairs, picked up the remaining bank meals, and headed toward the kitchen. The driver of the vehicle that transported the stairs drove away *688 from the plane in another direction. This was the first time Gravois had been outside on the tarmac when a flight departed, as all other times he and Jeff Provines had been in the jetway. Before Gravois could reach his destination, he was overcome with the noise of the jet preparing for takeoff. He dropped the meals he was carrying, covered his ears with his hands, and fell to the ground in pain. Gravois testified at deposition that Delta never supplied him with any written instructions concerning his duties or any verbal warnings concerning safety while in the vicinity of the planes. However, he admitted he observed various Delta service personnel wearing "ear muffs" while working near the planes. He did not observe Jeff Provines or any other Air Host employees wearing earplugs or other protective devices. Cecil Provines testified Air Host kept earmuffs in the truck, but wearing them was optional with the employees. When questioned about any written safety manual, Gravois admitted when he reported for work on the first day, Cecil Provines gave him "something from American Airlines," but he did not recall what it was. Shortly after the incident, Gravois attempted to return to work for Air Host, but because of loss of balance, he could not complete the day. On the date of his deposition, he stated he was still classified by his doctors as totally disabled. In support of their motion for summary judgment, the defendants introduced excerpts from the deposition of Donald R. Kincaid, Air Host's regional vice-president, who testified that Air Host had adopted the series of manuals used by American and Sky Chef. This fact was verified by plaintiffs' witness, Cecil Provines. Excerpts from one such manual were attached as exhibits. The pertinent provision of the section entitled "Work Rules" provides as follows: 3. Protective hearing devices that meet OSHA requirements must be worn at all times when you are in an exposed area on the ramp, i.e., while aircraft engines are running and/or while auxiliary power units (APU) are in operation on the aircraft. Local management will supply these devices. These ear protectors are worn to ensure you have no hearing loss due to continued/excessive noise exposure while performing your duties. Defendants' exhibits in support of their motion for summary judgment were unrefuted. DISCUSSION Appellate courts review summary judgments de novo under the same criteria as those governing the district court's consideration of whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La.1991). A motion for summary judgment is properly granted only if there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966; Lejano v. Bandak, 97-0388, pp. 24-25 (La.12/12/97), 705 So.2d 158, 171, cert. denied, 525 U.S. 815, 119 S.Ct. 52, 142 L.Ed.2d 40 (1998). There are no factual disputes in this matter. On legal issues, the appellate court gives no special weight to the findings of the trial court, but exercises its constitutional duty to review questions of law and renders judgment on the record. See Gonzales v. Xerox Corporation, 320 So.2d 163, 165 (La.1975); State, Louisiana Riverboat Gaming Commission v. Louisiana State Police Riverboat Gaming Enforcement Division, 95-2355, p. 5 (La.App. 1 Cir. 8/21/96), 694 So.2d 316, 319. Accordingly, *689 we have examined the applicable law and conclude the district court correctly granted summary judgment dismissing plaintiff's petition. A plaintiff in a personal injury action must prove five separate elements: (1) the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) the defendant's conduct failed to conform to the appropriate standard (the breach element); (3) the defendant's substandard conduct was a cause in fact of the plaintiff's injuries (the cause-in-fact element); (4) the defendant's substandard conduct was a legal cause of the plaintiff's injuries (the scope of liability or scope of protection element); and (5) the actual damages (the damages element). Fowler v. Roberts, 556 So.2d 1, 4 (La. 1989), reh. granted on other grounds and original opinion reinstated as supplemented, 556 So.2d 1 (La.1990). A negative answer to any of the inquiries of the duty-risk analysis results in a determination of no liability. Mathieu v. Imperial Toy Corporation, 94-0952, p. 11 (La.11/30/94), 646 So.2d 318, 326. Daye v. General Motors Corporation, 97-1653, p. 9 (La.9/9/98), 720 So.2d 654, 660. The critical question presented in this case is whether the defendants had a duty either to limit the noise of the jet or to anticipate that authorized personnel on the tarmac would not be wearing ear protection devices. The answer to this question does not require a credibility determination. This is a question of law. See Fowler v. Roberts, 556 So.2d at 4-5. Jets make a substantial amount of noise; there is no duty to operate a jet quietly. The jet was being operated in an ordinary, customary, and appropriate manner, in an appropriate place. The plaintiff had an obligation to conform his activity to the ordinary operation of the jet. There was no duty to conform the operation of the jet to accommodate Gravois. Gravois was working in an airport, in an area where loud jets take off. Even accepting as true Gravois's version of the accident, the fact that a sudden blast of noise from the aircraft caused him serious injury does not give rise to a duty on the part of Delta or the Airport to anticipate that an employee of Air Host would disregard the clear and obvious safety measures mandated by the safety manual. Finding that the airline has a duty to clear all personnel from the tarmac before jets prepare for takeoff would place an inordinate burden on air traffic and may well create congestion that would endanger a great number of people for the sake of protecting one person who failed to heed the common sense warning in the manual concerning "excessive" noise. We hold there is no duty on the part of the airline or the airport to determine that those who work near the jets are adequately protected from the noise before the jet begins its journey. Thus, we agree with the trial court that Gravois would not have been injured if he had been wearing protective ear gear. This is not an issue of comparative fault, as the plaintiffs suggest on appeal. There was simply no duty to ascertain whether those in the area were wearing ear protection devices before the jet took off. CONCLUSION We agree with the trial court that the defendants were entitled to judgment as a matter of law. We affirm the judgment of the trial court granting the defendants' motion for summary judgment and dismissing the plaintiffs' petition. We assess plaintiffs with costs of this appeal. AFFIRMED. NOTES [1] "Bank meals" were meals the caterer prepared in addition to those ordered in advance by the airline. Any bank meals not required for the flight were returned to the Air Host kitchen by the employees.